Gascoyne, J.c.c., Temporarily Assigned.
[124 NJSuper Page 228] Plaintiffs instituted suit against Ronald M. Heymann, Director of Motor Vehicles (Director), seeking recovery pursuant to N.J.S.A. 39:6-78 relating to "hit and run" cases. In the alternative, action was brought against Allstate Insurance Co. (Allstate) seeking a declaratory judgment under a policy of insurance issued by it. The declaratory judgment sought construction of two provisions of the uninsured motorist endorsement. A motion for summary judgment was made on behalf of the Director and was granted. The following
facts are germane to the resolution of the remaining issue, construction of the insurance policy.
The parties stipulated that (1) on May 16, 1970 Katherine W. Conklin was a passenger in a vehicle operated by her husband, John F. Conklin; (2) the vehicle was owned by General Adjustment Bureau, Inc. (GAB), Conklin's employer; (3) as a result thereof both plaintiffs were injured and now seek recovery against their insurance company, Allstate Insurance Co. (Allstate); (4) the Conklins carry uninsured motorist (UMI) coverage with Allstate.
John F. Conklin testified that while operating the vehicle he was forced off the road by an unknown vehicle. Proofs established that the police arrived at the scene and investigated. At the scene the police were satisfied that Conklin's physical condition was "apparently ok" and that there was no drinking involved. He told the police that "a car coming in the opposite direction with bright lights on forced him to veer off the traffic way."
There is no dispute that at the time of the accident GAB was insured by Home Indemnity Company (Home). John F. Conklin testified that while he knew this to be a fact, he did not know whether or not Home had UMI coverage. The Unsatisfied Claim and Judgment Fund (Fund) was notified of the accident. On October 8, 1970 the Fund advised the Conklins that there would be no protection by it because it had been advised by Home that it had UMI coverage.
On November 20, 1970 the Conklins were advised that Home had no such coverage. Just shortly prior to receipt of this notification Conklin had questioned his superior at GAB as to UMI coverage. His superior advised that he did not think there was such coverage but he would check it out.
The Conklins both testified that they had discussed the accident with one George Nicoli, their Allstate agent, early in June 1970 but this was collateral to other matters.
On December 11, 1970 Allstate was put on notice of the accident by counsel for the Conklins. The pertinent portions of the policy provide that "hit-and-run vehicle" means
(b) the insured or someone on his behalf shall have reported the accident within 48 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and
(d) with respect to subdivision (ii) the facts of such accident can be corroborated by competent evidence other than the testimony of any person having a claim under this or any other similar insurance as the result of such accident; * * *.
Allstate takes the position that there is no coverage for two reasons: (1) there has been a failure to comply with the condition that the company be notified within 30 days after the accident; (2) there has been a failure to comply with the requirement that the "no contact accident" be ...