Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
[108 NJSuper Page 328] The Unsatisfied Claim and Judgment Fund Board (Fund) appeals from an order entered under N.J.S.A. 39:6-71 directing payment out of its funds of the judgment of $8250 recovered in an automobile negligence
action by plaintiff against defendant administrator of the estate of Wilbert C. Somerville, Jr. (Wilbert), deceased.
The sole issue presented is whether the court was correct in ruling that plaintiff had established, as N.J.S.A. 39:6-70(f) requires, that Wilbert "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 controlling facts are conceded. On June 4, 1965 Wilbert did not own an automobile. His driver's license had theretofore been revoked or suspended, and for him to regain it it was necessary that he file proof of financial responsibility pursuant to N.J.S.A. 39:6-31 and N.J.S.A. 39:6-46 with the Director of the Division of Motor Vehicles.
The latter section provides in pertinent part:
A motor vehicle liability policy furnished as proof of financial responsibility as provided herein shall be a policy of liability insurance issued * * * to the person therein named as insured, * * *. The policy shall:
(a) Designate, by explicit description or appropriate reference, all motor vehicles with respect to which coverage is intended to be granted thereby, and insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured, against loss from the liability imposed upon the insured or other person by law, for injury to or the death of a person, * * * growing out of the maintenance, use or operation of the motor vehicle in the United States of America; or
(b) In the alternative, insure the person therein named as insured against loss from the liability imposed by law upon the insured for injury to or death of a person, * * * growing out of the operation or use by the insured of a motor vehicle, except a motor vehicle registered in the name of the insured, and occurring while the insured is personally in control, as driver or occupant, of the motor vehicle within the United States of America. [Emphasis added]
The policy filed by Wilbert with the Director as proof of financial responsibility was a "non-owner" policy, the alternative referred to in paragraph (b) of the quoted section. The policy, naming Wilbert as the insured, was issued for a term of one year from June 4, 1965 by Hardware
Mutual Casualty Company (Hardware), to which the risk had been assigned under ...