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Joseph v. Moore

Decided: July 31, 1968.

MANNIE JOSEPH, PLAINTIFF,
v.
CLIFTON MOORE, ET AL, DEFENDANTS



Tumulty, J.s.c.

Tumulty

This matter comes before the court on motion to order the State Treasurer to pay a "fair and equitable" settlement between plaintiff and defendant Clifton Moore and the Unsatisfied Claim and Judgment Fund, pursuant to N.J.S.A. 39:6-69, 70 and 71, involving interpretations of these provisions of N.J.S.A. 39:6-65:

"* * * that he [plaintiff] 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 * * *" (Emphasis supplied)

The court makes the following findings of fact which, although not stipulated, are undisputed.

On March 2, 1965, at 10:42 A.M., while standing on Washington Street, Newark, New Jersey, plaintiff Mannie Joseph

was struck by a 1958 Chrysler driven by defendant Clifton Moore and owned by one Katherine Mavraides. Joseph sustained injures and was hospitalized as a result.

At noon of the same day, a report of the accident was submitted to the Newark Police Department, setting forth that the motor vehicle involved was a 1958 Chrysler and listing Moore as the driver.

On April 23, 1965 suit was instituted by plaintiff against Moore, defendant operator, and Katherine Mavraides, defendant owner. On May 1, 1965 Katherine Mavraides was served with a summons and complaint. On May 5, 1965 Moore was served with summons and complaint.

On May 5, 1965 plaintiff's attorney received a stipulation extending time to answer from DeCotiis & Morrison, which law firm had been assigned by Empire Mutual Insurance Company (Empire) to handle the defense of Clifton Moore and Katherine Mavraides. An answer was filed on June 14, 1965. Meanwhile, although he had prepared a notice of intention on May 19, 1965 for filing with the Unsatisfied Claim and Judgment Fund Board, plaintiff's attorney did not file it under the circumstances.

On or about August 9, 1965 plaintiff's attorney and all other parties were served with a notice of motion by DeCotiis & Morrison, returnable September 17, 1965. The notice was executed by DeCotiis & Morrison as "attorneys for Empire Mutual Insurance Company" rather than as "attorneys for Katherine Mavraides and Clifton Moore", as theretofore.

The notice stated that an order would be sought "relieving them as counsel for Katherine Mavraides" and permitting the Empire Mutual Insurance Company to withdraw from the defense of the above entitled matter." (Emphasis supplied). The grounds were that the answer filed on behalf of Katherine Mavraides was filed through "inadvertence and mistake concerning insurance coverage of the aforementioned Katherine Mavraides."

The 1958 Chrysler owned by Katherine Mavraides was the same car that struck plaintiff on March 2, but Empire

claimed that the Chrysler was not covered by her insurance policy with Empire. Empire claimed it had on March 2, 1965, insured, under the same policy, two motor vehicles belonging to her. The vehicles insured were a 1956 Buick four-door sedan and a 1955 Ford station wagon. These were the only automobiles owned by Katherine Mavraides which were specifically insured by Empire on the date of the accident.

Empire's claims records reveal that on May 12, 1965 an accident was reported to Empire as having occurred on March 2, 1965, between one Mannie Joseph (plaintiff) and Clifton Moore (defendant). Moore was reported (by Newark police report of March 2, 1965) as driving the Chrysler that belonged to Katherine Mavraides.

Immediately upon receiving the claim, Empire turned it over to the law firm of DeCotiis & Morrison, counsel for Empire, for defense and handling. Subsequent investigation revealed that the car involved in the accident and driven by Clifton Moore was a 1958 Chrysler. This latter vehicle, although owned by Katherine Mavraides, was not an insured vehicle under any policy placed with Empire, as subsequently discovered by it.

Prior to the accident Katherine Mavraides had instructed her husband to place the Chrysler with Clifton Moore's garage in Newark for repairs. After the repair work was completed Moore drove the Chrysler to a hardware store on Washington Avenue for the purpose of "purchasing a clamp" for use in the repair of another vehicle. After ...


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