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Selimo v. Hartshorn

Decided: February 1, 1968.


Larner, J.s.c.


The issue involved herein arises upon plaintiff's application for payment of a judgment by the Unsatisfied Claim and Judgment Fund Board (Fund) which he obtained against defendant after a contested jury trial. The case was tried before this court and resulted in a verdict of $4,100 for personal injuries and $1,600 for property damage. The judgment for property damage is not involved in the present proceeding since the existence of collision insurance coverage prevents recovery against the Fund. The court is therefore concerned solely with the judgment of $4,100 for personal injuries. Counsel have stipulated that the court may consider not only the affidavit submitted in support of the motion and the testimony of the defendant on supplementary proceedings, but also all the facts established at the trial itself.

The court finds that plaintiff has complied with all the requirements of N.J.S.A. 39:6-70. The sole remaining issue in dispute therefore, is whether plaintiff has complied

with N.J.S.A. 39:6-71(b)(1), which provides that an order for payment shall be made if the court is satisfied:

"That the applicant has fully pursued and exhausted all remedies available to him for recovering damages against all persons mentioned in subparagraph (m) of section 10 by

(1) Commencing action against all such persons against whom the applicant might reasonably be considered as having a cause of action in respect of such damages and prosecuting every such action in good faith to judgment * * *."

In testing whether plaintiff has carried out his obligation to pursue and exhaust available remedies against other tortfeasors against whom he "might reasonably be considered as having a cause of action", it is necessary to delve into the unusual facts surrounding the occurrence of the accident.

On November 21, 1964, around midnight, plaintiff was operating his vehicle in a westerly direction on Route 46, in Parsippany-Troy Hills, New Jersey. Defendant was proceeding in an easterly direction on Route 46, crossing the intersection of Beverwyck Road, when he lost control, jumped the median barrier and collided with plaintiff in the westbound lane.

By way of explanation for his actions defendant testified that as he approached the intersection he was suddenly confronted by a car without lights, being pushed across the eastbound lanes by two boys. He swerved his car to the right and managed to avoid the obstructing vehicle. However, in attempting to turn back to the fast lane, his car hit the concrete divider, was hurled to the wrong side of the road and collided with plaintiff's vehicle. He did not see the vehicle prior to impact, and in fact did not see or speak to plaintiff at the scene or any time thereafter.

Plaintiff did not see defendant's vehicle until it was facing him in his lane, and had no knowledge of the presence of the stalled vehicle which was allegedly being pushed across the eastbound lanes. In fact, he was rendered unconscious at the time of the collision, regaining consciousness when he reached the hospital.

Police Officer Moore received a radio call regarding the accident as he was proceeding east on Route 46. As he approached Beverwyck Road after the collision had occurred, he saw a car being pushed across the eastbound lanes and the two vehicles of the litigants in the westbound lanes. He spoke to defendant and obtained his version of the accident. He also spoke to the individuals pushing the stalled vehicle and obtained their names and addresses.

Although he testified at the trial as to the names and addresses of the owner of the stalled vehicle and the persons who pushed the car across the road, his official report on file with the Police Department of the Township of Parsippany-Troy Hills was strangely silent on this information. His diagram on the report referred to the location of a "stalled auto", and the only other reference to such a vehicle was in the summary of the version of the accident submitted by defendant as follows:

"I was travelling east on Route 46 when I saw a vehicle diagonal on the road in front of me. I applied my brakes and swerved to the left to avoid hitting the car. My car jumped the center isle and hit a car going west."

Furthermore, there were no witnesses listed on the report.

The police officer's recollection of the identity of the persons associated with the stalled car was refreshed at trial by some personal notes on small pieces of paper which had been retained by him since the accident. No explanation was submitted for the omission of this vital information from the official police report.

It is conceded, however, that neither plaintiff nor defendant nor their attorneys had any knowledge of the identity of the owner or operator of the third vehicle before the day the police officer appeared in court pursuant to subpoena, and that none of them had any prior knowledge of the existence of any police writings or notes concerning the accident other than the official police report.

It is admitted that plaintiff and his attorney did not interview the police officer prior to trial and did not conduct any investigation of the allegations as to the stalled car. Apparently, they relied upon the absence of identification in the police report. It is significant that defendant, his attorney and the investigative agency of the Fund placed similar reliance on the police report and made no effort to identify the persons connected with the stalled car which was alluded to by the defendant.

During the discovery process prior to trial, interrogatories were addressed to defendant and were ...

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