Plaintiffs Robert Feuchtbaum and Jacqueline Feuchtbaum, his wife, make application for an order permitting them to serve defendants by substituted service upon the Uninsured Motorists Fund as defendants' insurers since they cannot be served and are avoiding service, under R. 4:4-4(i), which provides:
If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.
This action arose out of an automobile accident on U.S. Route 1 in Lawrence Township, New Jersey, on January 16, 1969. Suit was filed with the Superior Court clerk on December 4, 1969 and immediately sent to the sheriff of Middlesex County for service upon defendants at their last known address, 919B Village Drive East, North Brunswick, New Jersey, came back "defendants have moved." A check with the Director of Motor Vehicles as to a new address listed the same 919B or 9198 Village Drive East,
North Brunswick, New Jersey. Service was again attempted upon defendants at either of the above addresses, without success.
Defendants had heretofore, in May 1969, contacted an attorney for representation in this matter. Upon contacting the law firm plaintiffs were advised that defendants' last known address was 919B Village Drive East, North Brunswick, New Jersey, and it had not heard from them for some months.
Defendants cannot be served at any of the addresses brought to plaintiffs' attention. They know the pendency of this action. The Uninsured Drivers Fund has been given notice of the pendency and has participated in requesting information.
Counsel for the Unsatisfied Claim and Judgment Fund opposes this motion, relying on the recent case of Last v. Burns , 108 N.J. Super. 525 (Law Div. 1970). In that case, similar on the facts to this case, a motion to permit substituted service on the Unsatisfied Claim and Judgment Fund in lieu of service upon defendants personally was denied. The court, in rendering its decision, concluded that there is no authority permitting the Fund to accept substituted personal service on a known but absent defendant.
While it is true that there is no explicit authority, in either statutory or case law, which provides for substituted service upon the Fund in lieu of service upon defendants themselves, this form of service is implicitly authorized by the purposes for which the Fund was instituted, and is proper under R. 4:4-4(i).
The Legislature's purpose in establishing the Fund and delineating its responsibilities is set forth in Douglas v. Harris , 35 N.J. 270 (1961):
The result reached in Last v. Burns, supra , is in my opinion violative of the legislative intent behind the Fund law in that it leaves remediless a class of persons for whose benefit that law was adopted: a person who has suffered injury at the hands of a financially irresponsible driver.
The facts of this case place plaintiffs midway between the two sets of circumstances in which the Fund is bound by statute to pay claims arising out of automobile accidents involving uninsured motorists. Plaintiffs' automobile was struck by another vehicle driven by an uninsured motorist, one Francesco Constantini, against whom plaintiffs instituted suit but who now cannot be located and served. If it were possible to locate and serve ...