This is an action to recover for personal injuries plaintiff claims to have received while she was a passenger in an automobile operated by defendant Marilyn L. McNair which allegedly collided with an automobile operated by defendant Wilson Marrow.
Since he was not insured, the Unsatisfied Claim and Judgment Fund of the State of New Jersey (hereinafter called the Fund) filed an answer on behalf of Marrow. The Fund now moves for an order declaring that plaintiff is barred from recovering against the Fund because of the existence of an uninsured motorist coverage endorsement in a policy of insurance issued to defendant McNair by Home Indemnity Company. The endorsement provides in part as follows:
UNINSURED MOTORISTS COVERAGE (Damages for Bodily Injury and Property Damage Caused by Uninsured Highway Vehicles)
The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle; * * *
The Motor Vehicle Security Responsibility Law, N.J.S.A. 39:6-23 et seq. , established a system to provide compensation for damages caused by the operation of uninsured motor vehicles. Among other things, the statute created the Fund, N.J.S.A. 39:6-63, and defined the class of persons ("qualified person") who may make application for payment from the Fund. N.J.S.A. 39:6-62.
The kind of coverage provided for in the endorsement issued to defendant McNair is relatively new in New Jersey. Such coverage is permitted to be included in policies of automobile liability insurance by a recent amendment (effective January 2, 1969) of N.J.S.A. 17:28-1 in the following language:
N.J.S.A. 39:6-70(l) requires an applicant for payment from the Fund to show that he is not acting on behalf of an insurer. This subsection, however, is directed to situations in which there exists a policy of insurance "whereby the insurer is liable to pay, in whole or in part, the amount of the judgment." It has no applicability to this case since the policy in question does not undertake to pay a judgment. It undertakes to pay only such sums as have ...