Defendant Unsatisfied Claim and Judgment Fund (Fund) has requested a jury trial to determine whether plaintiff complied with the notice provisions of N.J.S.A. 39:6-65, incorporated in N.J.S.A. 39:6-86.5. This opinion supplements this court's oral determination rendered January 24, 1979, at which time counsel were informed that a written opinion would follow. Defendant had represented to the court that such requests for a jury trial were standard practice in contested applications for Personal Injury Protection (P.I.P.) benefits.
An applicant for P.I.P. benefits must, pursuant to N.J.S.A. 39:6-86.5, satisfy the provisions of N.J.S.A. 39:6-65. The latter statute requires that a party seeking damages from the Fund must, as a condition precedent to applying for payment, give notice to the Fund of the intention to make a claim. Ordinarily notice must be given within 90 days after the accident; particular extenuating circumstances
may warrant extension of the 90-day period. N.J.S.A. 39:6-65(a), (b). No right to a jury trial on the issue of compliance is specifically sanctioned by the statute. There is no reported case addressing the narrow issue of defendant's entitlement to a jury under this notice statute.
Absent legislative mandate, the right of trial by jury is confined to those matters in which it existed under the common law. Montclair v. Stanoyevich , 6 N.J. 479, 484 (1951); Colacurcio Contracting Corp. v. Weiss , 20 N.J. 258, 263 (1955). Neither the New Jersey nor the United States Constitution enlarges or restricts the right to jury trial; rather they preserve the rights existing when the Constitutions were adopted. Colacurcio, id.; Kugler v. Market Dev. Corp. , 124 N.J. Super. 314, 319 (Ch. Div. 1973). The Unsatisfied Claim and Judgment Fund, N.J.S.A. 39:6-60 et seq. , is a creature of statute. It creates new substantive rights foreign to the common law. Rudnick v. Bentler , 66 N.J. Super. 224, 230 (App. Div. 1961).
In none of the reported cases decided under N.J.S.A. 39:6-65 has the issue of notice been determined by a jury. Rather, dicta in the decisions reflect the settled view that the question is one "properly determinable by the courts." Giacobbe v. Gassert , 51 N.J. Super. 111, 120 (App. Div. 1958). For example, in Szcesny v. Vasquez , 65 N.J. Super. 82 (Law Div. 1960), aff'd 71 N.J. Super. 347 (App. Div. 1962), the court determined the notice issue after a jury trial on the merits. Since the enactment in 1952 of N.J.S.A. 39:6-65 there has been no contrary interpretation.
This court holds that the issue of compliance with N.J.S.A. 39:6-65 is to be determined by the court and not by a jury. Plaintiff's attorney has properly defined this ruling as interlocutory; this issue is ...