On appeal from Burlington County District Court.
Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.
[161 NJSuper Page 456] The Unsatisfied Claim and Judgment Fund Board (the Board) appeals from an order to pay $2,063.30 from the Fund on account of a judgment*fn1 entered against defendant Watler for property damage inflicted upon plaintiff's bus in a collision with defendant's apparently*fn2 uninsured motor vehicle. Because plaintiff is a self-insurer, appellant contends that plaintiff is not a "qualified person," as defined in N.J.S.A. 39:6-62 of the "UCJF Law" (N.J.S.A. 39:6-61 et seq.), and, therefore, is not entitled to compensation for damage caused by an uninsured motorist. Only a "qualified person" may claim indemnification from
the Fund. N.J.S.A. 39:6-69. N.J.S.A. 39:6-62 excludes from the definition of "qualified person" anyone who is an insured under an insurance policy providing uninsured motorist (UM) protection -- that is to say, insurance against bodily injury or property damage caused by an uninsured motorist, in a form authorized by N.J.S.A. 17:28-1 et seq. , "or in a form substantially similar thereto."
An owner or operator of autobusses may qualify as a self-insurer authorized to "carry its own liability insurance." N.J.S.A. 48:4-12. (See also, N.J.S.A. 39:6-52 authorizing any registered owner of more than 25 motor vehicles to become a self-insurer.) The question is whether Transport, as a self-insurer, is deemed to insure itself against damage caused by an uninsured motorist and is thereby precluded from asserting a claim against the Fund.
Although not essential to the disposition of that case, we previously held in Public Service Coord. Transport v. Marlo Trucking Co., Inc. , 108 N.J. Super. 232, 238 (App. Div. 1970), that a self-insurer is not disqualified by the terms of N.J.S.A. 39:6-70(l) from making claim against the Fund for property damage. The opinion in that case did not refer to N.J.S.A. 17:28-1.1, since the claim arose out of an accident which predated the adoption of that law. The case also predated the adoption of compulsory motor vehicle liability insurance laws in this State. For reasons stated below we reach a different result in the case at hand.
N.J.S.A. 39:6B-1, enacted by L. 1972, c. 197, requires every owner of a motor vehicle registered or principally garaged in New Jersey to "maintain motor vehicle liability insurance coverage" insuring against liability for bodily injury, death and property damage in specific amounts. Another statute, N.J.S.A. 17:28-1.1, requires that liability policies covering New Jersey vehicles contain UM coverage. In our judgment these statutes express the legislative intent that all New Jersey motor vehicles, covered by commercial insurance or self-insured, must be insured against injury or damage caused by uninsured motorists.
In its present form the relevant portions of N.J.S.A. 17:28-1.1 are as follows:
No automobile liability policy * * * of insurance insuring against loss resulting from liability imposed by law for bodily injury or death, sustained by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued in this State with respect to any motor vehicle registered or principally garaged in this State unless it includes coverage, in limits for bodily injury or death as follows:
under provisions approved by the Commissioner of Insurance, for payment of all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured automobile, or hit and run automobile as defined in [ N.J.S.A. 39:6-78], because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or hit and run automobile anywhere within the United States or Canada. All such automobile liability policies shall also include coverage * * * [for property damage caused by the] owners or operators of uninsured automobiles, other than hit and run automobiles * * * subject * * * to an exclusion of the first $100.00 of such damages.
Appellant contends that every motor vehicle registered or principally garaged in New Jersey must carry UM coverage pursuant to N.J.S.A. 17:28-1.1, citing Iavicoli, No Fault and Comparative Negligence in New Jersey , § 44 at 100 (1973). On the other hand, respondent contends that N.J.S.A. 17:28-1.1 applies only to private passenger automobiles and not to commercial vehicles. Respondent reasons that the only other statute which requires motor vehicles to carry UM coverage is N.J.S.A. 39:6A-14 of the "no fault" law. Since that law applies only to private, passenger automobiles (see definition of "automobile" in N.J.S.A. 39:6A-2(a)), and N.J.S.A. ...