Morrison, J.c.c., Temporarily Assigned.
This case comes before the court on cross-motions for summary judgment. Defendants move for summary judgment on the basis that the suit filed by the carrier cannot be sustained as a matter of law; therefore, the arbitration proceeding should be commenced. Plaintiff moves for a judgment that the coverage under the uninsured motorist endorsement of its policy is not available to either defendant.
The following facts have been established:
On September 27, 1975 defendants Kaplan and Colarusso, after exiting the Holland Tunnel, were proceeding toward the entrance ramp for highways U.S. 1 and 9. Suddenly, and without warning, their vehicle was "cut-off" by an unidentified bus. Kaplan swerved to avoid the bus which caused his Fiat to hit a road divider and roll over. There was no contact between the bus and the Kaplan vehicle.
Kaplan's vehicle was covered by a policy written by plaintiff Commercial Union Assurance Companies, which contained the mandatory uninsured motorist coverage, pursuant to N.J.S.A. 17:28-1.1. Commercial Union has denied coverage
on defendant's claim under this uninsured motorist endorsement.
With regard to defendant Kaplan, Commercial has asserted that under "no contact" case law in this State he cannot sustain his claim due to the absence of "corroboration" for his version of the occurrence.
We hold that Pasterchick v. Insurance Co. of North America , 150 N.J. Super. 90 (App. Div. 1977) is controlling on this issue. Pasterchick has declared the corroboration limitation on uninsured motorist coverage invalid as being contrary to the provisions of N.J.S.A. 39:6-78. This being a trial court, it is bound by our appellate decisions. Therefore, plaintiff's action is dismissed as against defendant Kaplan.
With regard to the passenger, plaintiff Commercial Union takes the position that as a condition precedent to Lynn Colarusso's recovering under its uninsured motorist endorsement covering Kaplan, she must litigate the issue of Kaplan's negligence and exhaust the possibility that no identifiable party contributed to the accident. Plaintiff asserts that in order for her rights to arise under the endorsement, a factfinder must determine that Kaplan was "in no way negligent."*fn1
At the outset, we note that both Kaplan and Miss Colarusso have consistently stated that their vehicle was cut off by an unidentified bus. The only mention of any identification came by way of a report*fn2 completed by the claims agent who, for reasons unbeknownst to Kaplan, typed in New Jersey Transportation Co. as the designation of the unknown vehicle.
We further note that the identification issue has been raised by plaintiff solely on the basis of this report -- obviously filled out by a person who was not a witness to the accident. Plaintiff has offered no ...