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Diane Ledbetter v. Schnur

Decided: November 25, 1969.

DIANE LEDBETTER, AN INFANT BY HER GUARDIAN AD LITEM, JAMES LEDBETTER, AND JAMES LEDBETTER, INDIVIDUALLY, PLAINTIFFS,
v.
LEON H. SCHNUR, LILLIAN F. SCHNUR, ROBERT B. STUART, AND DONALD SAVAGE, DEFENDANTS



Owens, J.s.c.

Owens

Plaintiffs seek an order providing for service of process upon defendant Donald Savage by substituted service on the insurance carrier of defendant Robert B. Stuart, the owner of the motor vehicle involved in the accident.

The complaint alleges that plaintiff Diane, a pedestrian, was struck by two vehicles. One vehicle was owned by a co-defendant, Leon Schnur, and operated by Lillian Schnur. The other vehicle was owned by defendant Stuart (hereafter "owner") and operated by defendant Savage. Savage was driving with the owner's consent, but not as his agent. This accident occurred on March 29, 1969 in Cedar Grove, New Jersey.

Plaintiffs served the owner Stuart, but could not effect service upon the driver Savage, who apparently departed this State leaving no forwarding address. Plaintiffs' attorney

made an exhaustive but unsuccessful search to locate the driver.

The insurance carrier, Fidelity and Casualty Insurance Company, has entered an appearance for the owner, its named assured, and will eventually obtain a dismissal for lack of agency. The owner's policy, under the omnibus clause, extends coverage to the driver. However, the carrier does not appear for the driver, presumably for failure to effect service.

Therefore, to restate the issue, plaintiffs seek to serve the driver by way of substituted service by serving the owner's insurance company.

Plaintiffs urge as authority for the validity of such service the case of Rudikoff v. Byrne , 101 N.J. Super. 29 (Law Div. 1968). There the court allowed service of process on defendant pursuant to R.R. 4:4-4(j) and R.R. 4:4-5(a), the rationale of the holding being that although New Jersey did not expressly allow such service, the rules did permit service outside the State if such service were valid in that state. Service was made in New York State where such service is permitted. Dobkin v. Chapman; Sellars v. Raye and Keller v. Rappoport , 21 N.Y. 2 d 490, 289 N.Y.S. 2 d 161, 236 N.E. 2 d 451 (Ct. App. 1968). This was a tri-case decision treated in one opinion. Dobkin and Sellars were cases of uninsured drivers where service on the Motor Vehicle Accident Indemnification Corporation was sustained. Since Keller v. Rappoport involved service on defendant's insurance carrier, we shall hereafter refer to the decision only as Keller v. Rappoport.

Rudikoff v. Byrne, supra , clearly holds that service was allowed because New York law was followed. It also noted that at that time there was no precedent in New Jersey for such service.

It is true that no provision of our rules expressly permits service upon an insured by serving his insurance carrier, and there is no judicial precedent for it in our State. [101 N.J. Super. , at 33]

Whether Rudikoff v. Byrne , could be used as authority for granting plaintiff's motion is no longer important. It is recognized that there should be some provision in the rules to authorize this type of service. Carlin v. Schuler , 89 N.J. Super. 366 (Law Div. 1965). However, it is the opinion of the court that R. 4:4-4(i), effective September 8, 1969, does in fact authorize the court to allow ...


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