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Hannan v. Employers Commercial Union Insurance Co.

Decided: December 8, 1971.

CHARLES HANNAN AND RUTH E. HANNAN, HIS WIFE, PLAINTIFFS,
v.
EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANTS



Toscano, J.c.c.

Toscano

[117 NJSuper Page 486] This is a declaratory judgment action brought by plaintiffs Charles and Ruth E. Hannan to determine the respective obligations of defendants, Employers Commercial Union Insurance Company and the Unsatisfied

Claim and Judgment Fund Board to afford plaintiffs either contracted insurance coverage or uninsured motorist protection.

The facts disclose that on or about May 14, 1969 plaintiff Ruth E. Hannan sustained personal injuries as a result of a motor vehicle collision that occurred in New Jersey with an automobile operated by Carol E. Pecile and owned by Kathryn Puglisi. Both of these women are uninsured and were uninsured motorists at the time of the accident. The Unsatisfied Claim and Judgment Fund Board therefore entered an appearance on their behalf.

Plaintiffs, on the other hand, were covered at the time of the accident by a policy issued by Employers Commercial Union Insurance Company. This company had been handling the plaintiffs' automobile insurance since at least 1965.

In March 1968 an agent of the company, Michael Fitzgerald, discussed with plaintiffs the addition of family protection coverage to their automobile policy. He explained that such coverage provided for damages arising from an accident with an uninsured motorist, but pointed out that such protection was not available for accidents that occurred in New Jersey.

On March 4, 1968 plaintiffs' policy was effectively changed in order to include family protection coverage. When the policy was renewed for the period August 22, 1968 to August 22, 1969, this same provision was afforded plaintiffs at an additional charge of $2. Annexed to the renewed policy as a rider was an endorsement that read:

It is agreed that such insurance as is afforded by the Family Protection Coverage with respect to an automobile principally garaged in the State of New Jersey, does not apply to any accident occurring in the State of New Jersey.

The wording in the policy of the coverage itself does not expressly contain the above exclusion. However, the New Jersey statute, in effect up until 1969, that authorized insurance companies to provide for such uninsured motorists'

coverage, specifically restricted this authorization to accidents occurring outside New Jersey.

The above restriction was deleted from N.J.S.A. 17:28-1 by an amendment approved January 2, 1969, effective April 2, 1969. In addition, the amendment created two new sections, N.J.S.A. 17:28-1.1 and 1.2, which respectively require insurance companies to offer uninsured motorists' coverage before delivering or issuing for delivery an automobile liability policy in New Jersey, and then to obtain a written election from the named insured either rejecting or accepting the required offer.

The issue raised by the instant action is whether the above cited statutory amendment is applicable to this situation so as to impose upon Employers Union liability for any payments the uninsured motorist, Carol E. Pecile, and uninsured owner, Kathryn Puglisi, would be legally responsible to make to plaintiffs. If the new statutory provisions are inapplicable, the Fund must bear this ...


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