Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
[108 NJSuper Page 233] The Unsatisfied Claim and Judgment Fund Board (Fund) appeals from an order requiring it to pay all but the $100 statutory deduction (see N.J.S.A. 39:6-69) of the $1,500 judgment which plaintiff recovered
against defendant Marlo Trucking Co., Inc. (Marlo), a New York corporation, and its driver defendant Wilkerson in a property damage automobile negligence action.
On February 1, 1963, the date of the accident in Newark, New Jersey, which culminated in the negligence action, Marlo was insured under a policy of automobile liability insurance issued by Nationwide Mutual Insurance Company (Nationwide).
A letter written by Nationwide, a copy of which was attached to plaintiff's affidavit on its application for an order directing payment from the Fund, and the affidavit of Nationwide's district claim manager which plaintiff thereafter submitted, state that Nationwide had conducted its investigation of the accident under a nonwaiver agreement and that "at the conclusion of its inquiries" it had notified its insured Marlo that it disclaimed coverage because notice of the accident had not been given it until March 14, 1963. Nationwide asserted that the insured had thus breached the condition of the policy calling for notice of the accident to be given as soon as practicable.
Plaintiff did not sue Nationwide. In its application under N.J.S.A. 39:6-69, 70 and 71 seeking an order for payment from the Fund, after referring to Nationwide's disclaimer, plaintiff averred that
Therefore, the Judgment debtor was for practical purposes without insurance at the time this action was instituted, at the time judgment was obtained and remains so as to the plaintiff, Public Service Coordinated Transport.
The proofs as to the disclaimer were submitted in purported compliance with plaintiff's obligation under N.J.S.A. 39:6-70(f) to show that
The judgment debtor at the time of the accident was not insured under a policy of automobile liability insurance under the terms of which the insurer is liable to pay in whole or in part the amount of the judgment.
The trial court rejected the Fund's contention that under Wormack v. Howard , 33 N.J. 139 (1960), it could not be said that there was no liability insurance in effect unless and until plaintiff instituted an action against Nationwide and was unsuccessful therein. Citing Gilbert v. Unsatisfied Claim, etc. Board , 85 N.J. Super. 143 (App. Div. 1964), certif. den. 44 N.J. 403 (1965), the court ruled "that the evidence adduced by the plaintiff disclosed a bona fide disclaimer" by Nationwide so that plaintiff was entitled to the order directing payment out of the Fund.
Implicit in the trial court's citation of Gilbert was its finding that the insurance policy was executed and delivered to Marlo in New York, so that the law of that state governed the rights of the parties under the insurance contract. See Gilbert, supra , at 149; Kraynick v. Nationwide Ins. Co. , 72 N.J. Super. 34, 38 (App. Div. 1962); Buzzone v. Hartford Accident and Indemnity Co. , 23 N.J. 447, 452 (1957). We find no merit in the suggestion by the Fund in its supplemental brief that the New Jersey Law*fn* should be applied because the proofs do not establish that the policy was a New York contract. Marlo's principal place of business was in Brooklyn, New York; its driver was a New York resident, and the attorney who represented it generally was a New York attorney. Plaintiff asserts and defendant does not deny that the policy issued out of Nationwide's New York office. The logical inference to be drawn from the only proofs submitted is that the policy was executed and delivered to Marlo in New York.
Further, contrary to what the Fund argues, application of the New York law is not precluded because plaintiff did not plead the New ...