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Downs v. Winslow

Decided: September 14, 1967.

HERBERT DOWNS, GUARDIAN OF HIS MINOR CHILD, JOY DOWNS, PLAINTIFF,
v.
OSCAR WINSLOW, DEFENDANT. ROSEMARY DIIONNO, AN INFANT BY HER GUARDIAN AD LITEM, TONY DIIONNO, AND TONY DIIONNO, INDIVIDUALLY, PLAINTIFFS, V. OSCAR WINSLOW, DEFENDANT



Civil action. Motion for payment out of Unsatisfied Claim and Judgment Fund.

DeVita, J.d.c. (temporarily assigned).

Devita

Herbert Downs, guardian of his minor child Joy, sued Oscar Winslow for damages on behalf of his infant daughter, who was injured while a passenger in a motor vehicle operated by the co-plaintiff Rosemary DiIonno. Tony DiIonno, guardian ad litem of his minor child Rosemary DiIonno, instituted suit against Winslow for damages on behalf of his infant daughter, who was injured while operating a motor vehicle. Both cases were consolidated for trial and a jury returned verdicts on behalf of both plaintiffs.

The first issue is whether the payment from DiIonno's insurance carrier is deductible from Joy Downs' final judgment pursuant to N.J.S.A. 39:6-70, 71.

Unsatisfied Claim and Judgment Fund statutes requiring deductions can be grouped into two general categories. The first requires the deduction from any judgment rendered of any benefits received by the claimant from anyone other than the judgment debtor. The second requires the deduction from judgment rendered any sum collected from any source in payment of the judgment.

When the New Jersey Legislature approved the Unsatisfied Claim and Judgment Fund Law in 1952 the statute closely conformed with existing statutes in the first category. However,

in 1958 the Legislature amended the statute to the degree that it now conforms more precisely with the second category.

Believing some historical court decisions would be helpful in the final analysis, the following is set out in summary fashion to demonstrate the interpretation of the 1952 act.

All case law deciding such issue prior to the 1958 amendment is clear and unequivocal. The old statute, formerly cited as subparagraph (m) of section 10, presently amended to N.J.S.A. 39:6-70(m) read as follows:

"* * * the 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 stating the amounts recovered upon such judgments or the amounts, if any, received for indemnity or other benefits for such injury or death or damage to property from any person other than the operator or owner of the motor vehicle causing such injury, death or damage." (Emphasis added to section which was subsequently amended).

The former relevant section of N.J.S.A. 39:6-71 read as follows:

"Any amount for compensation or indemnity for damages or other benefits which the plaintiff has received or can collect from any person other than the judgment debtor shall be deducted from the amount due upon the judgment for payment of which claim is made." (Emphasis added).

Case law considering these sections is abundant. In Dixon v. Gassert, 26 N.J. 1 (1958), the court held that hospitalization payments paid from accident and health policies constituted "an indemnity or other benefits" deductible from the judgment rendered.

In Fasano v. Gassert, 49 N.J. Super. 52 (Law Div. 1958), the court held deductible payments for temporary disability, hospitalization, surgical and ...


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