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Feuchtbaum v. Constantini

Decided: July 21, 1971.

ROBERT FEUCHTBAUM AND JACQUELINE FEUCHTBAUM, PLAINTIFFS-RESPONDENTS,
v.
ANSEHNO CONSTANTINI, DEFENDANT. SHIRLEY MAGAHAN AND RALPH MAGAHAN, PLAINTIFFS-APPELLANTS, V. GLEN R. ERSPAMER AND HAROLD H. CONKLIN, JR., DEFENDANTS-RESPONDENTS. STEPHEN LAGRECA AND ANTOINETTE LAGRECA, PLAINTIFFS-APPELLANTS, V. LOUIS V. HARS, DEFENDANT-RESPONDENT



For modification and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Mountain. Opposed -- None. For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Mountain. Opposed -- None. The opinion of the Court was delivered by Weintraub, C.J.

Weintraub

These actions arise out of automobile accidents and have the common feature that the defendant, a resident of our State at the time of the occurrence, thereafter disappeared and could not be served with process by any of the usual modes of service. Hence plaintiffs asked leave to make service another way. In LaGreca v. Hars, plaintiff sought to serve defendant by service on defendant's insurance carrier. The trial court denied the application. In Feuchtbaum v. Constantini and Magahan v. Erspamer, there being no insurance coverage, plaintiffs sought to serve defendants by serving the Unsatisfied Claim and Judgment Fund, which, as we will later develop, is liable for injuries negligently inflicted by an uninsured motorist. In Feuchtbaum, plaintiff's motion was granted. 110 N.J. Super. 515 (Law Div. 1970). In Magahan it was denied. The Appellate Division granted leave to appeal in all of these cases and we certified them before argument in that court.

R. 4:4-4 deals with service of process in actions in personam. Paragraph (a) authorizes the conventional service

by delivery of a copy of the summons and complaint to an individual personally; or by leaving the copy at his dwelling house or usual place of abode with a competent member of his family of the age of 14 years or over then residing there; or by delivering the copy to a person authorized by appointment or by law to receive service of process on his behalf. None of the defendants could be served under that paragraph of the rule.

Paragraph (e) provides for substituted service by registered or certified mail, return receipt requested, addressed to defendant's dwelling house or usual place of abode or at his place of business or employment. None of the defendants could be served in that way because defendants moved after the accidents occurred and could not be located. Paragraph (e) also permits service outside the State, but again, since defendants could not be found, service could not be made under that provision.

Paragraph (h) provides for service upon any defendant "as may be provided by law." With respect to motor vehicle accidents, the Legislature has authorized service upon the Director of the Division of Motor Vehicles, both with respect to a motorist who was a nonresident at the time of the accident, N.J.S.A. 39:7-2, and a motorist who was then a resident but thereafter became a nonresident and cannot be served here because of his nonresidence. N.J.S.A. 39:7-2.1. The Director is required to transmit the process as provided in N.J.S.A. 39:7-3. The statute, however, does not expressly deal with the situations before us in which a motorist, resident at the time of the accident, cannot be found.*fn1

Being unable to achieve service by any of the methods set forth above, plaintiffs turned to the final provision of R. 4:4-4, added by amendment effective September 8, 1969, which reads:

(i) 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.

In each of the cases before us, it appears that the defendant knew he was involved in an accident; that thereafter he moved from his local residence, leaving no forwarding address; that he did not advise the plaintiffs, or the Director of Motor Vehicles, or the police, of his whereabouts; that he took no apparent step to keep informed with respect to the claims against him arising out of the occurrence. It also appears satisfactorily that plaintiffs conducted ample investigations which exhausted all leads. In short, unless plaintiffs are permitted to make service under paragraph (i) of the rule, they will be without remedy.

I

LaGRECA v. HARS

As mentioned above, Hars held a liability policy. Plaintiff sought an order permitting service upon defendant by service upon the carrier. We note that plaintiff does not seek to maintain a direct action against the carrier or to attach Hars' interest in the insurance policy. Rather the action is against Hars personally and the thesis advanced is that the carrier should be deemed to be the agent of the insured for the purpose of service upon the insured when he cannot be found upon diligent inquiry.

Plaintiffs based their application to the trial court upon R. 4:4-4(i) which we quoted above, and upon Ledbetter v. Schnur, 107 N.J. Super. 479 (Law Div. 1969), which authorized such service upon a carrier on the basis of that

paragraph of our rule. The trial court held the facts brought the case within Ledbetter but that Ledbetter should not be applied because LaGreca's complaint had been dismissed for lack of prosecution before Ledbetter and was restored to the list by motion after Ledbetter was decided and at a date when, if the action ...


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