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Gilbert v. Unsatisfied Claim and Judgment Fund Board

Decided: October 21, 1964.

GERALDINE GILBERT, ETC. (AND 4 OTHERS), PLAINTIFFS-RESPONDENTS,
v.
UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-APPELLANT



Gaulkin, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

This is an appeal by the Unsatisfied Claim and Judgment Fund Board (Fund) from an order of the Passaic County District Court directing payment of judgments entered in favor of plaintiffs.

The evidence before the court in support of plaintiffs' application for payment by the Fund was uncontradicted. On October 20, 1958 plaintiffs Helen M. Gilbert, Geraldine Gilbert, an infant aged 27 months, and Margaret Rose Rosati, an infant aged 21 months, were passengers in the automobile owned and operated by Margaret M. Hollowood (formerly Margaret M. Rosati), mother of the infant plaintiff Margaret Rose Rosati. Following a shopping trip Mrs. Hollowood stopped her motor vehicle at the curb on Broadway in Paterson, New Jersey, and went to purchase candy at a nearby store for her daughter. While she was gone, the vehicle was struck by an automobile operated by Willie R. Newell and owned by James D. Holston. The latter was asleep on the rear seat of his car at the time of the collision. Both Newell and Holston were residents of New York. Mrs. Gilbert and the two infant children were injured.

Almost a year later, on September 18, 1959, plaintiffs' attorney wrote a claim letter to the Merchants Mutual Insurance Company, Holston's insurance carrier. On October 28, 1959 the insurance company notified plaintiffs' attorney that it had disclaimed liability under the terms of its policy.

Plaintiffs, after giving timely notice to the Fund, instituted suit against Holston and Newell. Service of process against Holston was made through the New Jersey Division of Motor Vehicles pursuant to R.S. 39:7-1 et seq. However, while an attempt to serve Newell in a like manner was undertaken, the

latter could not be found and service of process was never obtained. Following a trial of the action against Holston, which was defended by the Fund, judgment was entered against Holston in the amounts of $1,500 for Helen M. Gilbert, $300 for Geraldine Gilbert, and $300 for Margaret Rose Rosati.

Plaintiffs thereafter made application for payment of the judgment by the Fund pursuant to N.J.S.A. 39:6-70. The Fund opposed. Following a summary hearing, the court granted the application.

I.

The Fund contends that failure of plaintiffs to serve Newell with process and to reduce their claims against him to judgment bars them from recovery under the following provisions of the statute:

N.J.S.A. 39:6-70

"* * * [T]he applicant shall be required to show * * * (m) whether or not he has recovered a judgment in an action against any other person against whom he has a cause of action in respect of his damages for bodily injury or death or damage to property arising out of the accident and what amounts, if any, he has received by way of payments upon the judgment, or by way of settlement of such cause of action, in whole or in part, from or on behalf of such other person."

N.J.S.A. 39:6-71

"The court shall make an order directed to the treasurer requiring him to make payment from the fund of such sum, if any, as it shall find to be payable upon such claim, pursuant to the provisions of and in accordance with the limitations ...


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