Decided: January 21, 1971.
ROBERT STUPIN, PLAINTIFF-RESPONDENT,
PRIMITIVO SANCHEZ, DEFENDANT-APPELLANT. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, APPELLANT
Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.
[113 NJSuper Page 85]
The narrow legal issue presented is whether plaintiff, a New Jersey uninsured motorist, may compel payment by the Unsatisfied Claim and Judgment Fund Board (Fund) of a judgment obtained against defendant, also a New Jersey uninsured motorist, who ran over plaintiff while plaintiff was changing a flat tire on his car.
This appeal is from the order requiring the Fund to pay the judgment. We reverse.
To enable an uninsured motorist to collect a judgment from the Fund he must show, among other things, that:
He was not at the time of the accident, operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child, and was not operating a motor vehicle in violation of an order of suspension or revocation, (N.J.S.A. 39:6-70(d))
The trial judge determined "that the plaintiff was not the operator of his car when injured" because it was neither operable nor was he in it when injured. This was too narrow a construction of the statute.
Plaintiff was on his way home from work when his left front tire went flat on the Pulaski Skyway. Rather than abandon the car, he proceeded to fix the flat and was injured while doing so. Fixing the flat tire was part of operating the car to enable plaintiff to get home. It is true the
[113 NJSuper Page 86]
car was at a temporary standstill but nevertheless he was still operating an uninsured motor vehicle owned by him within the proscription of the statute. See Robson v. Rodriquez , 26 N.J. 517, 524-525 (1958); Gilbert v. Unsatisfied Claim and Judgment Fund Board , 85 N.J. Super. 143 (App. Div. 1964), certif. den. 44 N.J. 403 (1965); Lascari v. Iannaci , 56 N.J. 317 (1970).
Reversed and remanded with directions to enter judgment for the Fund.