Seidman, J.c.c. (temporarily assigned).
[103 NJSuper Page 258] Plaintiff, a resident of New York, moves for a pretrial determination that he is qualified to bring an action against the Director of the Division of Motor Vehicles for damages allegedly
resulting from a "hit-and-run" incident which occurred in this State. The issue to be resolved is whether, on the facts here present, New York affords to residents of this State recourse of substantially similar character to that provided by our Unsatisfied Claim and Judgment Fund Act.
It is plaintiff's contention that on February 8, 1965, as he was operating his automobile along Route 9 in Woodbridge, an unknown and unidentified vehicle cut him off, causing his car to leave the highway and resulting in bodily injury to him. Concededly, there was no contact between the vehicles. Thereafter, he filed suit against June Strelecki, the Director of the Division of Motor Vehicles, claiming, inter alia, that he was a qualified person as defined in N.J.S.A. 39:6-62 and thus competent to avail himself of the "hit-and-run" section of the Fund Law, N.J.S.A. 39:6-78. The Director asserts that plaintiff is not qualified because New York does not give New Jersey residents relief on similar facts.
N.J.S.A. 39:6-62 defines a "qualified person" as "a resident of this State or the owner of a motor vehicle registered in this State or a resident of another State, territory, or Federal district of the United States or Province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this State, of substantially similar character to that provided for by this act." By enactment of the Motor Vehicle Accident Indemnification Corporation Law, L. 1958, c. 759; 27 McKinney's Consol. Laws, "Insurance Law", c. 28, § 600 et seq., New York created an unsatisfied claim & judgment fund (MVAIC) comparable to ours. The definition of a nonresident qualified to prosecute a claim against the MVAIC, contained in § 601 (b)(2), is virtually identical with the language of N.J.S.A. 39:6-62, and includes the prerequisite that New York residents be afforded, in the state of the nonresident claimant, recourse "of substantially similar character to that provided for by this article." See Feliciano v. Oglesby, 102 N.J. Super. 378 (Law Div., 1968).
The controversy arises because, under our statute, a hit-and-run case does not require physical contact by the unidentified vehicle; whereas there must be such contact under the comparable section of the New York law. The Director argues that since a New Jersey resident, in such situation, would not be granted relief in New York, the essential element of reciprocity is lacking, and the claimant is thus precluded from maintaining his action against the Director. No reported case in this State appears to have resolved the precise issue now before the court. What must be determined is whether, to constitute reciprocity, both statutes need merely be broadly comparable in scope and intent; or whether, on the same facts, the foreign state must afford a New Jersey resident the same relief which is sought here.
Both the New Jersey and the New York statutes contain "hit-and-run" provisions. The significant difference between the two is the element of physical contact. Subject to compliance with certain requirements not applicable here, N.J.S.A. 39:6-78 authorizes a qualified person to bring an action for death or personal injury against the Director "when the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State * * * but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained * * *." There need not be physical contact. See, for example, Lieberman v. Saley, 94 N.J. Super. 156 (App. Div. 1967). Section 617 of the New York statute specifies that the "protection provided by this article shall not apply to any cause of action by an insured or qualified person arising out of a motor vehicle accident occurring in this state lying against a person or persons whose identity is unascertainable, unless the bodily injury to the insured or qualified person arose out of the physical contact of the motor vehicle causing such bodily injury with the insured or qualified person or with a motor vehicle which the insured or qualified person was occupying at the time of the accident." (Emphasis supplied). Although the impact need not be directly to the claimant's vehicle or
person, there must be an initial physical contact, as, for example, where an unidentified vehicle strikes another automobile, propelling it into the claimant's vehicle or person. See Motor Vehicle Acc. Indemn. Corp. v. Eisenberg, 18 N.Y. 2 d 1, 271 N.Y.S. 2 d 641, 218 N.E. 2 d 524 (Ct. App. 1966).
Clearly, had the accident in question occurred in New York, it would not have come within the protection of the MVAIC law.
In considering the problem of reciprocity the basic test to be applied is whether the foreign state offers our residents substantially similar recourse. Substantial similarity requires more than similarity of purpose, although this is essential to establish general reciprocity. There must also be substantial similarity of relief. For a comprehensive discussion of this subject, see Ward, "The Uninsured Motorist: National and International Protection Presently Available and Comparative Problems in Substantial Similarity," 9 Buffalo L. Rev. 283, 306.
Obviously, if a foreign state has no statute which approximates the coverage and protection of our Fund law, the element of similarity of purpose is lacking, there is a complete absence of reciprocity, and no resident of the foreign state is qualified to avail himself of our Fund law. Prior to January 1, 1959 New York had no law which met this standard of substantial similarity of purpose, inasmuch as no remedy was afforded a qualified person who sustained personal injury or death at the hands of a financially irresponsible or ...