This matter comes before the court on defendant's motion for summary judgment seeking the dismissal of the complaint upon the ground that plaintiff's claim is barred under the rationale of the cases of Koplik v. C.P. Trucking Corp. , 27 N.J. 1 (1958), and Darrow v. Hanover Tp. , 58 N.J. 410 (1971).
The unrefuted facts presented on this motion, as set forth by recital in the briefs and affidavit with copies of letters attached filed by plaintiff's counsel, indicate that on July 5, 1970 plaintiff John W. Gotsch (hereinafter John) was a passenger in an automobile operated by Gail Brock (hereinafter Gail), which automobile left the highway and struck a stone wall, injuring plaintiff. Although the collision occurred in the State of New York, both John and Gail were and continue to be residents of New Jersey. On August 14, 1970 John called his attorney and told him about the accident. His attorney set up an appointment for August 17, 1970 wherein full details of the incident were elicited and counsel retained. On the same day John's attorney called and spoke with a representative of Gail's insurance carrier, Hartford Accident and Indemnity Company (hereinafter Hartford), advising the representative of his retainer, asserting that no complaint would be filed then but that further
conferences would be had after the local representative secured the initial investigation file from the New York office. Thereafter, and until September 8, 1970, John's attorney engaged in several telephone discussions with the carrier concerning the claim, the gist of which was to await further medical developments and procure reports and records, all with the view to an amicable disposition of the matter. During this period, on August 22, 1970, John and Gail were married.
John's attorney being uncertain of his client's new position as to the doctrine of marital immunity, and for the protection of his client's interest, sent a complaint to the county clerk on September 8, 1970 and a copy thereof to Hartford's representative, explaining in the letter of transmittal to the insurance company that "although we normally would not file a complaint at this time, I am doing so since the law in this area may change and I feel it is my duty to the client to see to it that the action is instituted." Further statements of the letter were to the effect that service would not be effected for ten days, that a 30-day extension of time to answer would be freely granted giving the carrier at least 60 days to answer, and that in the meantime sufficient records could be developed and presented and if the company wanted a physical examination another extension by court order would have his consent. Included in this letter were copies of initial hospital records which had just arrived. About 30 days later, on October 9, 1970, a doctor's report was forwarded to the carrier along with a copy of the doctor's bill to date, and John's attorney iterated his reasons for instituting the action and brought the company adjuster up to date as to service of process upon John's wife, giving assurance that consent would be granted to orders for filing answer out of time and asking if any other information was required.
On June 7, 1971 Justice Proctor, speaking for our Supreme Court in Darrow v. Hanover Tp., supra , held that the rule of Immer v. Risko abrogating the doctrine of interspousal
immunity in automobile negligence cases would be available only to persons suffering injuries in automobile accidents occurring after July 10, 1970, the date Immer was decided.
On June 17, 1971 the carrier's claims supervisor wrote to John's attorney asking if he was in a position to supply a list of the medical specials and lost wages, if any, expressing an interest in "how much the claimant earns, and whether or not he has returned to employment. This is necessary for the development of our file."
Shortly thereafter, apparently, the carrier retained counsel who on July 27, 1971, served a notice of motion before this court for an order of summary judgment dismissing the husband's complaint against his wife upon the grounds that the claim was barred under the rationale of Koplik and Darrow, supra.
In support of the motion it is contended that prior to Immer v. Risko , 56 N.J. 482 (July 10, 1970), the interspousal immunity rule in automobile negligence cases was specifically applied to suits between spouses in antenuptial torts. Koplik, supra. Therefore, since the accident occurred five days before Immer was decided, the doctrine of interspousal immunity still applies under the authority of Koplik because Darrow holds that the Immer rule is available only prospectively.
Justice Proctor, in deciding Immer v. Risko, supra , pointed out (at 485) that although the number of courts opposing the interspousal immunity doctrine was growing, our Supreme Court in abrogating it was not going to predicate its decision on the trend but upon its own view of the policies involved. This led to the further statement flowing from Long v. Landy , 35 N.J. 44 (1961), that "when the reasons ...