Gallner, P.J.J.D.R.C. (temporarily assigned).
[113 NJSuper Page 496] This matter is brought before this court on a motion for summary judgment addressed to a complaint seeking a declaratory
judgment resulting from the Unsatisfied Claim and Judgment Fund Board (Fund) refusing to defend an action heretofore instituted by plaintiff against an uninsured motorist. The Fund denies responsibility because of plaintiff's failure to comply with the statutes requiring the filing of a notice of intention. The salient question before this Court is whether the transactions which heretofore took place at the time of the inception of the original action by plaintiff against an uninsured motorist constituted sufficient notice under N.J.S.A. 39:6-65. The Fund claims that the procedure followed was such that it should not be called upon to defend the action; plaintiff, on the other hand, claims that there has been a sufficient substantial compliance with the statute so as to impose an obligation upon the Fund to defend and, in the event of a judgment, after trial, to pay within statutory limits any Judgment the Plaintiff may obtain.
The original action and the transactions taking place thereunder are as follows: On February 8, 1969 plaintiff was involved in an automobile accident with an uninsured motorist, one James Martin. The accident happened in Cumberland County and, as a result thereof, plaintiff herein was injured. A complaint was filed against the uninsured motorist on February 24, 1969 by the firm of Perskie and Perskie, attorneys, having their offices in Wildwood, New Jersey, which complaint was served upon the driver and other persons joined as defendants, to wit: the owner, Annie B. Martin and other uninsured motorists involved in the accident. Defendants then, and prior to March 13, 1969, visited their personal attorney, Philip P. Wodlinger, who has law offices in the City of Millville. Wodlinger sent the complaint to the Unsatisfied Claim and Judgment Fund Board on March 13, 1969. In an accompanying letter he advised them that James Martin and Annie B. Martin were defendants to the complaint; that the Martins were uninsured and, further that he had told his clients it would be more expedient for the Fund to attend to the defense of the action. He enclosed
a copy of the summons and complaint and stated: "I * * * assume that you will defend this action unless I hear from you to the contrary. I am mailing a copy of this letter to Perskie & Perskie, Esquires." This communication was sent to the Fund with the complaint enclosed, and a copy of the letter was sent to plaintiff's counsel.
Nothing was done by plaintiff's counsel, and on May 29, slightly more than 90 days from the date of the accident, the Fund communicated with plaintiff's counsel and advised him as follows: "We acknowledge receipt of the Complaint in this matter. A review of our files has failed to reveal any record of a notice of intention filed by or on behalf of the plaintiff; therefore, we are unable to assist you in this matter." The Fund had the complaint in its office from March 1969 until the end of May 1969, during which time nothing was said by them to anyone or any communications addressed to anyone with respect to the anticipated decision that the Fund was going to make respecting the action. A count of the days will indicate that approximately 117 days had expired, but during the entire 90-day prescribed period, the complaint was in the hands of the Fund.
At the conclusion of the time to plead plaintiff made a motion before the Superior Court, Law Division, Cape May County, for an order granting a default against defendant Fund for failure to plead or otherwise defend. Subsequently, and by order of the court, the Fund was given leave to file an answer in this action. It answered, alleging that it received the letter from Wodlinger, referred to hereinabove, and admitted it had received a notice of intention, dated June 5, 1969 after the expiration of the 90 days. As a separate defense the Fund set up as a bar noncompliance with N.J.S.A. 39:6-65. Subsequent to filing the answer, a motion was made to dismiss the action summarily, and it is this motion the Court is now called upon to decide.
The statute, N.J.S.A. 39:6-65, sets up certain guidelines -- a course of action, if you will -- promulgated for the purpose of granting heretofore unknown relief to statutorily
qualified persons injured or suffering property damage by virtue of accidents with uninsured motorists. The statute prescribes a certain procedure that must be followed, and the Fund alleges in its brief, as well as in argument before the court, that plaintiff's action is barred because there was a failure to follow these prescribed guidelines.
It is the opinion of this court that to deny relief because of a deviation from the prescribed route is to defeat the very purpose for which the statute was enacted. A reading of section 65 would indicate that its primary purpose is to place the Fund upon notice of the pending action. Obviously, it is imperative that the Fund, as well as any insurance company, should have prompt notice of the happening of a casualty insured against or protected by the Fund. A requirement that such notice be given is reasonable and will be enforced. Miller v. Zurich General Acc. & Liab. Ins. Co. , 36 N.J. Super. 288 (App. Div. 1955). It would seem that the Fund needs prompt notice, as does any insuror, yet an examination of the statute will indicate that its provisions for notice to the Fund are much more liberal than those contained in insurance policies. See Russo v. Forrest , 52 N.J. Super. 233 (App. Div. 1958).
In this case notice was not sent to the Fund within the prescribed time; however, plaintiff did ask for forms and advised the Fund of the accident. The case arose out of a delay because of the injury, and, on the facts, the court denied relief; however, the court, in its opinion indicated that if notice had been given by some person, particularly plaintiff's husband who was with her at the time of the accident, within a reasonable time, then even if the information had been in the form of a letter telling the Fund about the accident and requesting forms, it would have been sufficient to have fulfilled the statutory mandate. The court was explicit in pointing out that "It would be impossible in a single opinion to lay down general rules for the guidance of all future cases." However, pertinent in the opinion was the following:
And though the statute does say the notice shall be "on a form prescribed" by the Fund, that does not mean the claimant or someone on his behalf may not write the Fund, advise it of the accident and ask for forms * * * [t]he date of the receipt of such a letter and its contents would very likely have a bearing favorable to the claimant on the ...