Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.s.c., Temporarily Assigned.
Defendant Director of Motor Vehicles pursuant to leave of this court appeals from a denial of his motion for summary judgment in an action instituted against him under the provisions of N.J.S.A. 39:6-78.
The complaint initially filed against the Director sought recovery for damages sustained as the result of a "no contact" hit-and-run accident under the Unsatisfied Claim and Judgment Fund Law. Plaintiff alleged in the complaint that he was injured in an accident as a result of being forced off the road by an unknown driver of an unidentified motor vehicle. The Director moved for summary judgment on the ground that plaintiff was covered under the uninsured motorist endorsement to his policy of insurance and therefore was not a "qualified person" within the meaning of
N.J.S.A. 39:6-62 and was barred from recovery under the provisions of N.J.S.A. 39:6-78. The motion was granted, but without prejudice and subject to being reopened pending the outcome of an arbitration proceeding on the issue of coverage.
The arbitrators ruled that plaintiff was not entitled to coverage under the uninsured motorist endorsement because the accident giving rise to the injury was a "no contact" accident, and there was no corroboration of plaintiff's testimony, as required by the policy. Following that decision plaintiff moved to set aside the prior order for summary judgment which was granted and the complaint was reinstated.
Plaintiff thereupon filed an amended complaint adding as a party defendant his insurance carrier, Camden Fire Insurance Association (Camden). Following the filing of answers by both defendants in which liability was denied by each, the Director again moved for summary judgment on the ground that the requirement of corroboration in a "no contact" hit-and-run accident as set forth in the uninsured motorist endorsement to the Camden policy was void as against public policy since the coverage afforded under such endorsement must be interpreted as broadly as the protection afforded by the Unsatisfied Claim and Judgment Fund Law. The trial judge denied the motion for summary judgment on the ground that there was insufficient evidence before it upon which to decide the issue.
We are of the view that the court was in error in this regard. The salient facts concerning the happening of the accident were uncontroverted, the Camden policy of insurance and the uninsured motorist endorsement issued thereto were before the court by agreement, and both counsel for the Director and for Camden conceded at oral argument that the uninsured motorist endorsement had been approved by the Commissioner of Insurance. Thus, there was no genuine issue as to the material facts involved, and the matter was ripe for a decision on the merits.
The pertinent provisions of the uninsured motorist endorsement are as follows:
The company will pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle * * *.
"hit-and-run vehicle" means (i) a highway vehicle which causes an accident resulting in bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, or (ii) a highway vehicle which without physical contact with the insured or with a vehicle which the insured is occupying at the time of the accident causes bodily injury to an insured arising out of an accident in New Jersey, provided:
(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 ...