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Banks v. Walls

Decided: February 27, 1975.

DIANE BANKS AND THOMAS BANKS, HER HUSBAND, PLAINTIFFS,
v.
WILLIAM J. WALLS AND LLOYD W. GILES, DEFENDANTS



Gruccio, J.s.c.

Gruccio

This matter is before the court on a motion of the Unsatisfied Claim and Judgment Fund Board (hereinafter Fund) (a) to be relieved as to the obligation to provide and continue as counsel, and (b) to preclude payment of any judgment from the Fund.

On December 25, 1968 an automobile accident occurred which resulted in the present action. Pursuant to N.J.S.A. 39:6-65 a notice of intention to make claim against the Fund was filed by plaintiffs and receipt of such notice was acknowledged by the Fund in January 1969. A physician's certificate was duly filed with the Fund indicating the injuries sustained by plaintiffs as well as any future treatment that might be required. This report also revealed the fact that plaintiff was a minor.

The matter was referred by the Fund to an assigned investigator in March 1969. A complete defense investigation was conducted and the findings submitted to the Fund by report on December 9, 1969, approximately one year from the date of the accident and 11 months from the time the Fund received the notice of intention.

Plaintiff, a passenger and minor as of the date of the accident and filing of the complaint, alleges the joint negligence of both vehicle operators in the intersectional collision. The complaint was received and filed on June 21, 1971 by the Clerk of the Superior Court, the summonses were issued and defendants duly served. The codefendant answered through his carrier. No appearance was entered on behalf of the uninsured driver. This was not noted until the matter

appeared on the trial list and the judge instructed counsel to notify the Fund to assign counsel.

Upon the assignment of counsel the Fund brings this motion. It claims that part of N.J.S.A. 39:6-65 which reads that

has not been complied with.

The Fund contends that this provision, like the notice of intention requirement, is mandatory and failure to satisfy either precludes recovery from the Fund.

The court's attention is directed to the case of Szczesny v. Vasquez, 71 N.J. Super. 347 (App. Div. 1962), which held that the notice of intention was a mandatory prerequisite in order to obtain access to the fund. Szczesny is easily distinguished from the case at bar. The 90-day period required for filing the notice of intention is akin to a statute of limitations; noncompliance with the time provision allows a dismissal of the case. Here the Fund had due and proper notice. It completely investigated the case, requested medical reports, bills and estimated bills, knew all the witnesses and was aware of the potential value of the case.

Although this provision of the statute before the court has not been interpreted directly by our courts, we are not without guidance from our appellate courts in similar circumstances.

The instant matter can be compared with the provision in our rules requiring that the summons be issued within ten days of the filing of the complaint. R. 4:4-1. This provision was construed in a matter not unlike the facts in the instant proceeding in McLaughlin v. Bassing, 100 N.J. Super. 67 (App. ...


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