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Wharton v. Knox

Decided: November 24, 1967.

OTIS H. WHARTON, SR. AND MARY C. WHARTON, PLAINTIFFS-RESPONDENTS,
v.
FLOYD KNOX, DEFENDANT-RESPONDENT, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD OF THE STATE OF NEW JERSEY, APPELLANT



Sullivan, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

This is an appeal by the Unsatisfied Claim and Judgment Fund Board (Board) from an order of the trial court directing the State Treasurer to pay plaintiffs' claims from the Fund.

On January 19, 1964 plaintiffs, residents of New Jersey, were involved in an automobile accident with defendant Floyd Knox, a resident of Philadelphia, Pa. On April 15, 1964 plaintiffs, alleging personal injury and property damages, instituted suit against Knox, who at the time of the accident was insured by Lawn Mutual Insurance Company, a Pennsylvania corporation not authorized to do business in New Jersey.

On March 22, 1965 the operations of Lawn Mutual were suspended by order of the Pennsylvania Insurance Commissioner, and on April 7, 1965 plaintiffs received notice of the insolvency of the carrier. Thereupon, on April 14, 1965 plaintiffs gave notice to the Board of their intention to file a claim against it. This notice was acknowledged on April 19, 1965, and on May 11, 1965 the Board advised plaintiffs that "[i]nasmuch as the Notice of Intention was not filed within 90 days after the accident no further action by the Fund is indicated."

On February 21, 1966 trial of the cause between plaintiffs and Knox was held. Judgment was entered in favor of plaintiff Otis H. Wharton, Sr. in the sum of $3,000 and in favor of plaintiff Mary C. Wharton in the sum of $2,000.

Subsequently, plaintiffs brought discovery proceedings against Knox but were unable to find any assets from which to satisfy their judgment claims. Plaintiffs then filed their petition for payment. Following a hearing thereon the order appealed from was entered.

The trial court, giving N.J.S.A. 39:6-65(b) a "liberal construction," determined that "the insolvency of the insurance

company was tantamount to a 'disclaimer' as that term is used in our statute." It concluded that since plaintiffs gave notice to the Fund within 15 days of receiving notice of this "disclaimer," they were eligible to receive payment from it.

Involved herein is the construction of N.J.S.A. 39:6-65, which in pertinent part provides:

"Any qualified person * * *, who suffers damages resulting from bodily injury or death or damage to property arising out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, and whose damages may be satisfied in whole or in part from the fund, shall, within 90 days after the accident, as a condition precedent to the right thereafter to apply for payment from the fund, give notice to the board, the form and contents of which shall be prescribed by the board, of his intention to make a claim thereon for such damages if otherwise uncollectible; provided, any such qualified person may, in lieu of giving said notice within said time, make proof to the court on the hearing of the application for the payment of a judgment (a) that he was physically incapable of giving said notice within said period and that he gave said notice within 90 days after he became physically capable to do so or in the event he did not become so capable, that a notice was given on his behalf within a reasonable period, or (b) that he gave notice to the board within 15 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages. * * *"

The Board's primary contention is that the insolvency of Lawn Mutual cannot be construed as the equivalent of a disclaimer within the above statute. We disagree.

Although the particular point that the Board raises is one of novel impression, our courts have repeatedly held that our Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq., is designed to create and maintain a fund to provide a measure of relief for otherwise remediless persons who sustain losses or injuries inflicted by financially irresponsible or unidentified operators of motor vehicles. Moan v. Coombs, 47 N.J. 348, 351 (1966); Douglas ...


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