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Feliciano v. Oglesby

Decided: July 23, 1968.

PETRA FELICIANO, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CARMEN RIVERA, DECEASED; ADMINISTRATRIX AD PROSEQUENDUM AND GENFRAL ADMINISTRATRIX OF THE ESTATE OF ANGEL RIVERA, DECEASED; ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF EDWIN RIVERA, DECEASED; KENNETH RIVERA, AN INFANT, BY HIS GUARDIAN AD LITEM, PETRA FELICIANO; AND GILBERT RIVERA, AN INFANT, BY HIS GUARDIAN AD LITEM, PETRA FELICIANO, PLAINTIFFS,
v.
JOHNNY OGLESBY, ADMINISTRATOR AD LITEM OF THE ESTATE OF GEORGE WASHINGTON, DECEASED, DEFENDANT. LUDELL BRADFORD, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JAMES BRADFORD, JR., DECEASED, PLAINTIFF, V. JOHNNY OGLESBY, ADMINISTRATOR AD LITEM OF THE ESTATE OF GEORGE WASHINGTON, DECEASED, DEFENDANT. ELIZABETH BUSH, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF FREDDIE BUSH, JR., DECEASED; AND ROBERT L. SIMMONS, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MANNIE SIMMONS, JR., DECEASED, PLAINTIFFS, V. JOHNNY OGLESBY, ADMINISTRATOR AD LITEM OF THE ESTATE OF GEORGE WASHINGTON, DECEASED, DEFENDANT



Seidman, J.c.c. (temporarily assigned).

Seidman

These proceedings, before the court on the applications of judgment creditors, pursuant to N.J.S.A. 39:6-69, for payment by the Unsatisfied Claim and Judgment Fund, present a problem which does not appear to have been determined previously in any reported decision in this State.

The basic issue is whether a nonresident claimant who has obtained judgments against an uninsured tortfeasor is entitled to payment by the Fund, where moneys have been or will be received by reason of uninsured motorist coverage in an automobile policy issued in New York, the insurer having the right to reimbursement from the proceeds of any settlement with or judgment against the uninsured tortfeasor.

On March 20, 1965 Angel Rivera, a resident of New York, was driving a station wagon in a general westerly direction along Route 22 in the Newark area. He was accompanied by his wife Carmen; three of their infant children, Edwin, Kenneth and Gilbert, and two friends, Carmen Romeu and Adela Gorgas. Proceeding east was another automobile, operated by one George Washington, in which James Bradford, Jr., Freddie Bush, Jr., and Mannie Simmons, Jr. were riding as passengers, all residents of New Jersey. Suddenly and unaccountably the Washington car swerved from the eastbound lane into the path of the Rivera car. In the ensuing collision all the occupants of the Washington car and Mrs. Rivera were killed instantly. Angel Rivera died after three days. His son Edwin suffered a severe head wound and remained in a coma until his death 2 1/2 years later. The injuries sustained by the other occupants of the Rivera car were relatively minor.

Subsequently, Petra Feliciano instituted suit as administratrix ad prosequendum of the estates of Angel Rivera, Carmen Rivera and Edwin Rivera; as general administratrix of the estates of Angel Rivera and Edwin Rivera, and as guardian ad litem of Kenneth and Gilbert Rivera. She joined as parties defendant Johnny Oglesby, administrator ad litem

of the estate of George Washington; Alice Farrell, and John T. Vitolo. Mrs. Farrell and Vitolo were operators of automobiles to the rear of the Rivera car which had become entangled in the collision. Complaints against these defendants, and also against Petra Feliciano as personal representative of the estate of Angel Rivera, were filed by Ludell Bradford, administratrix ad prosequendum of the estate of James Bradford, Jr.; Elizabeth Bush, administratrix ad prosequendum of the estate of Freddie Bush, Jr., and Robert L. Simmons, administrator ad prosequendum of the estate of Mannie Simmons, Jr. The claims of Carmen Romeu and Adela Gorgas are not involved herein.

At a trial of the consolidated cases, limited to the issue of liability, the jury found, in response to interrogatories, that the negligence of George Washington was the sole proximate cause of the collision. Thereafter, by consent of counsel, the court tried the damage phase of the cases without a jury. Judgments were entered in favor of Petra Feliciano, in her several representative capacities, totalling $142,303. Awards were also made in the respective sums of $70,745 for the death of James Bradford, Jr.; $15,804 for the death of Freddie Bush, Jr., and $11,635 for the death of Mannie Simmons, Jr. All the judgment creditors now seek payment by the Fund in such proportions as the court may determine. The insolvency of the Washington estate is conceded.

Although the Fund interposes a pro forma objection to the Bradford, Bush and Simmons applications, no supporting facts have been submitted. The court is satisfied that these judgment creditors are entitled to their pro-rated shares, subject to the maximum limits prescribed by N.J.S.A. 39:6-69(a) and (b).

The Fund also resists the Feliciano application, contending that the members of the Rivera family are not qualified persons as defined in N.J.S.A. 39:6-62 and, in addition, that they are ineligible to receive payment because of the existence of insurance coverage. The other applicants, whose

shares obviously would be diminished if the Feliciano judgments were to participate in the distribution, join in opposing the application.

At the time of the tragic accident the Rivera car was insured under a policy issued by Public Service Mutual Insurance Company, which provided for protection against uninsured motorists. The limits of coverage for an accident were $10,000 for one person killed or injured, and $20,000 for more than one. The insuring agreement (termed Coverage J) was

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration." (Emphasis supplied)

"Insured," as defined in the policy includes "the named insured and any relative" and "any other person while occupying an insured vehicle."

I

The Fund argues that, by virtue of the uninsured motorists coverage, New York does not afford New Jersey residents recourse of a substantially similar character to that provided by the New Jersey Fund law; consequently, Mrs. Feliciano, in her representative capacity, is not a qualified person within the meaning of our statute. See Betz v. Director of Division of Motor Vehicles, 27 N.J. 324 (1958). There is no merit to the contention.

The term "qualified person," under N.J.S.A. 39:6-62, includes a resident of another state in which "recourse is

afforded, to residents of this State, of substantially similar character to that provided for by this act." In 1958, by enactment of the Motor Vehicle Accident Indemnification Corporation Law, L. 1958, c. 759, 27 McKinney's Consol. Laws, "Insurance Law," c. 28, ยง 600 et seq., New York created an unsatisfied claim and judgment fund comparable to ours, deemed by the Attorney General of this State to provide recourse of substantially like character. See Rudnick v. Bentler, 66 N.J. Super. 224, 229 (App. Div. 1961).

The point is made that if a New Jersey resident holding a policy containing such coverage were killed or injured in New York by the negligence of an uninsured motorist of that state, the New Jersey resident would not be a qualified person within the meaning of the New York statute. Even if that were so, ...


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