On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Michels, Ard and Furman. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave of this court, defendants John A. Waddington, former Director of the New Jersey Division of Motor Vehicles (Director) and the Unsatisfied Claim and Judgment Fund Board (Board) appeal from a partial summary judgment of the Law Division in favor of plaintiff Eugene J. Garley (Garley) declaring a judgment recovered by Carol Haggerty against Garley, in her role as general administratrix and administratrix ad prosequendum of the estate of Robert E. Haggerty, Jr., to be null and void on the ground that service of process against him was invalid; and from an order of that court denying their motion to amend their answer to include additional affirmative defenses.
On February 14, 1965, a vehicle operated by Garley was involved in a head-on collision with another vehicle operated by John Harasts. As a result of the collision, David Koch and Robert Haggerty, two passengers in Garley's automobile, were fatally injured. Thereafter, civil suits were instituted by the representatives of the two decedents against Garley and Harasts.
On April 26, 1965, service of process in the Koch suit was made upon Garley by a deputy sheriff of Hudson County by leaving a true copy of the summons and complaint "at his usual place of abode 211 Cator Ave. Jersey City N.J. with a member of his family (father). . ." On May 18, 1965, service of process in the Haggerty case was made upon Garley by the same deputy sheriff by leaving a true copy of the summons and complaint "at his usual place of abode 211 Cator Ave. Jersey City N.J. with a member of the family (cousin). . ." Since Garley was an uninsured motorist at the time of the accident, the Fund was put on notice of the accident and, pursuant to the provisions of the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-66, assigned the investigation of said claims and representation of plaintiff in both suits to a Newark law firm. Subsequently, in March and April of 1968, consent judgments were respectively
entered against Garley in the Koch case for $6,000 and in the Haggerty case for $9,500. The judgments were paid by the Fund and thereafter, in accordance with N.J.S.A. 39:6-77, assigned to the Director. Garley remains liable to the Director on these judgments and they constitute a lien on his real property.
On August 16, 1979, approximately ten years after these judgments were recovered against Garley, he instituted this action, seeking a judicial declaration that the judgments in both the Koch and Haggerty suits were null and void on the grounds that: (1) service of process in both suits was defective, and (2) defendants negligently permitted both judgments to be entered and paid. In Count I of the complaint, which relates to the Koch suit, Garley alleged that, although the record indicates service of process of the complaint in the Koch suit was made on April 26, 1965 by leaving process with his father at 211 Cator Avenue in Jersey City, he did not reside at the Cator Avenue address at that time and was never informed by his parents of the service of any papers relating to the suit. He further asserted that, during the pendency of the Koch suit, he was never contacted by the attorneys retained by the Fund to represent him. In Count II, which relates to the Haggerty suit, Garley again alleged that, with respect to the record service of process upon his cousin at 211 Cator Avenue on May 18, 1965, he was not a resident of that address at that time nor did his cousin reside there. He also claimed that at no time during the pendency of the Haggerty suit was he contacted by the Fund attorneys.
Depositions established that on February 14, 1965, the date of the accident, Garley resided at his parents' home at 211 Cator Avenue, Jersey City, New Jersey. However, according to Garley's testimony, within three or four weeks after his release from the Jersey City Medical Center (where he was hospitalized for approximately six weeks for treatment of injuries sustained in the accident), he moved out of the 211 Cator Avenue residence and into his sister's home at 209 Garfield Avenue in Jersey City and then into rental premises at 211 Garfield Avenue.
Garley further testified that he did not notify the Division of Motor Vehicles of his change of address.
Garley also testified that subsequent to the accident, in addition to conversations that he had with an attorney retained for the defense of criminal charges which were pending against him as a result of the accident, he discussed the accident with an attorney or insurance investigator whose name he could not recall. According to Garley, the attorney or insurance investigator contacted him at his parents' residence at 211 Cator Avenue, advised him he had been assigned by the State to represent him and discussed the circumstances surrounding the accident for a period of 15 to 20 minutes. Nonetheless, Garley made no attempt thereafter to ascertain from the attorney or insurance investigator who contacted him, the status of these matters.
Garley moved for summary judgment, contending that the evidence conclusively established that he did not reside at 211 Cator Avenue at the time of service of process in either the Koch or Haggerty suits and that service of process in each suit was therefore defective. In support of that motion, Garley relied upon his own deposition and certification and upon the certified statements of his mother, father, two friends and an attorney. These certified statements generally assert that Garley moved out of the 211 Cator Avenue residence in April 1965 and that during the relevant time period no person other than Garley's brother was a member of the parents' household. Interestingly, in Garley's certification, he indicates that after leaving Cator Avenue he continued to use it as his address "for convenience and because it was the address the Division of Motor Vehicles had for him" and further, that, in a certified ...