Miller, J.c.c., Temporarily Assigned.
This is a motion for dismissal of plaintiffs' complaint and to preclude payment by the Unsatisfied Claim and Judgment Fund Board. Plaintiff was involved in a one-car accident on May 5, 1974, when she claims to have been confronted by a car travelling toward her in the center of the road. She was forced onto the shoulder where she lost control of the car and slammed into a telephone pole. On August 2, 1974 plaintiff's attorney mailed a letter to the Fund informing it that plaintiff was going to proceed in arbitration against her insurer under her uninsured motorist policy provisions. The letter also stated that if plaintiff failed in arbitration, she would then proceed against the Fund. Upon receipt of this letter the Fund sent plaintiff's attorney a form entitled, "Notice of Intention to Make Claim," which plaintiff's attorney completed and mailed on November 14, 1974. On February 7, 1975 plaintiff filed a demand for arbitration. The arbitration was heard on April 23, 1976. On June 3, 1976 the arbitrator decided in favor of plaintiff's insurer. Within 24 hours plaintiff notified the Fund by telephone that she would proceed against it. On July 20, 1976 a complaint was filed and served against the director of the Fund.
Defendant pursues two theories in its motion. One is that plaintiff instituted the suit after the statute of limitations had run, and therefore should be barred from suit. N.J.S.A. 2A:14-2. The second is that plaintiff should not be
able to proceed against the Fund because coverage and the notice required by statute was not provided to the Fund in a timely fashion. N.J.S.A. 39:6-65.
The first issue which must be dealt with is the running of the statute of limitations. N.J.S.A. 2A:14-2 provides a two-year statute of limitations for personal injuries caused by a "wrongful act, neglect or default * * *".
Counsel for plaintiff cites Condit v. Director of Motor Vehicles , 98 N.J. Super. 295 (App. Div. 1967), certif. den. 51 N.J. 275 (1968), in support of his contention that the statute of limitations should not be strictly enforced. That case, however, deals with the specific provisions of N.J.S.A. 39:6-79. That section allows institution of suit against the Director of Motor Vehicles if the plaintiff fails to recover in a prior action on either the basis that the identity of the vehicle, owner and operator has not been established, or, the basis that the vehicle was in the possession of someone without the consent of the owner and the identity of the operator is not established. Under that section suit may be brought against the Director within three months of the entry of judgment in the first action. The court in Condit held that in that situation suit could properly be filed within the three-month period even if the statute of limitations had run.
The instant case differs factually from Condit. No prior action has been brought. Plaintiff cannot rely on a specific statutory provision which would allow a less strict enforcement of the statute of limitations.
Plaintiff also cites Erickson v. McGaskill , 110 N.J. Super. 325 (App. Div. 1970), certif. den. 57 N.J. 126 (1970), in which the Fund appealed an order to pay a judgment. A verdict had been entered against an uninsured motorist in a suit in which the motorist's employer had not been joined. The court held that the decision of plaintiff's attorney not to join the employer was reasonable and therefore held the Fund was required to satisfy the judgment. This presents a different situation. In the case at bar plaintiff's decision
as to the proper time to bring suit was not discretionary, but rather was controlled by a specific statutory provision.
Plaintiff also cites Banks v. Walls , 132 N.J. Super. 567 (Law Div. 1975), which presented a situation in which the Fund alleged that it had not received a copy of the complaint pursuant to N.J.S.A. 39:6-65. The court held that this did not relieve the Fund of its obligation to plaintiff. But it also noted that the case was filed before the statute of limitations had run.
Plaintiff next claims that the Fund should be estopped from raising the statute of limitations as a defense. For this claim she relies on Friedman v. Friendly Ice Cream Co. , 133 N.J. Super. 333 (App. Div. 1975) and Peloso v. Hartford Fire Ins. Co. , 56 N.J. 514 (1970). Those cases involve suits by plaintiffs against insurance companies who were involved in protracted negotiations with plaintiffs. Peloso was a fire insurance case in which the court held that the statute of limitations was tolled from the time plaintiffs gave notice to its insurer and negotiations began until liability was declined by the insurer. In Friedman plaintiff injured his tooth on a peach pit while eating a dish of ice cream. The court applied the ...