On appeal from the Superior Court, Law Division, Essex County.
Allcorn and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
Gregory Wilkins, the infant plaintiff in this action, was born July 8, 1967. On November 20, 1974, when he was seven years old, he allegedly suffered serious injuries as a result of being struck by an uninsured automobile driven by defendant Leonard Smith and owned by defendant Sandra Smith. This unfortunate though not unusual incident has given rise to lengthy proceedings in the Superior Court which must be described in detail for the disposition of this appeal.
On May 26, 1976 Gregory Wilkins, represented by his mother Marian F. Wilkins as guardian ad litem , filed an action in the Superior Court against the Smiths. Marian F. Wilkins also joined in the action individually. An answer was filed on behalf of the Smiths by an attorney who apparently was privately retained by them. We assume this since the Smiths were uninsured and no notice had previously been given to the Unsatisfied Claim and Judgment Fund (hereinafter the Fund) that plaintiffs intended to make a claim against the Fund. Plaintiffs subsequently served interrogatories on defendants which were answered by them on October 29, 1976. One answer recited that defendants were not insured.
Apparently as a result of defendants' answers to interrogatories, plaintiffs filed a notice of intention on April 4, 1977 to make a claim against the Fund. See N.J.S.A. 39:6-65. The notice was stated to be on behalf of Gregory Wilkins, an infant by his guardian ad litem Marian Wilkins, and Marian Wilkins individually. In January 1979 the Fund through its own counsel moved to dismiss the action against it even though it was not a party. No procedural objections to this motion were presented. In a written opinion dated January 8, 1979 the judge granted the Fund's motion. He reasoned that plaintiffs' notice would have been timely for the infant if it had been given within 90 days of the suit being filed or 15 days after disclaimer of coverage by an insurance carrier, whichever was later. See N.J.S.A. 39:6-65. The judge conceived that, even treating the
answers to interrogatories as a disclaimer, plaintiff had given late notice under either test of timeliness. The opinion did not distinguish between a notice on behalf of the infant and a notice on behalf of his mother individually. It is manifest, however, that if the notice for the infant was untimely, his mother's claim could be given no better status. On January 23, 1979 the judge signed an order dismissing the action as to the Fund. No appeal has ever been taken from this order. On May 7, 1979 the parties filed a stipulation of dismissal without prejudice as to plaintiffs and the Smiths, subject to the proviso that all "discovery entered into so far be binding upon any future case. . . ." This stipulation was signed by private counsel retained by the Smiths.
On May 9, 1979 plaintiffs started a second action, the case now pending before us. The parties were the same as in the first case. The Fund again was not made a party but it was promptly sent a copy of the complaint which it acknowledges having received on May 22, 1979. The Fund later served a motion to dismiss the action as to it. This motion was argued January 9, 1981. The judge granted this motion in an oral opinion. He reasoned that an infant is given 90 days after commencement of an action to file a notice of intention with the Fund if the action is brought by a guardian ad litem. The judge felt that because the infant plaintiff was represented by a guardian ad litem in the first case he should be treated as having been an adult from the time that case had been brought. Since there had not been a timely notice in the initial action, then no greater effect could be given the notice in the later action. Again no distinction was made in the opinion between the claims of the infant and his mother individually. On January 21, 1981 the judge signed an order granting the Fund's motion to dismiss as to it. Plaintiffs then moved for leave to appeal. By our order of March 11, 1981 we granted their motion. It is this interlocutory appeal which is now pending.
This action centers on the meaning and application of N.J.S.A. 39:6-65, which provides, in part:
Any qualified person, or the personal representative of such person, who suffers damages resulting from bodily injury or death or damage to property arising out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, and whose damages may be satisfied in whole or in part from the fund, shall, except in cases in which the claim is asserted by actions brought under section 18 of this act pursuant to section 19 of this act, within 90 days after the accident, as a condition precedent to the right thereafter to apply for payment from the fund, give notice to the board, the form and contents of which shall be prescribed by the board, of his intention to make a claim thereon for such damages if otherwise uncollectible; provided, any such qualified person may, in lieu of giving said notice within said time, make proof to the court on the hearing of the application for the payment of a judgment (a) that he was physically incapable of giving said notice within said period and that he gave said notice within 90 days after he became physically capable to do so or in the event he did not become so capable, that a notice was given on his behalf within a reasonable period, or (b) that he gave notice to the board within 15 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages. A copy of the complaint shall be furnished to the board if an action has theretofore been brought for the enforcement of such claim. Such person shall also notify the board of any action thereafter instituted for the enforcement of such claim within 15 days after the institution thereof and such notice shall be accompanied by a copy of the complaint.
The thrust of the statute is that a claimant must within 90 days of an accident or 15 days of receipt of notice that an insurer has disclaimed on a policy of insurance give notice of intention to the Fund to make a claim against it. The notice is a condition precedent to making a claim. The 90-day period, however, is extended on behalf of a person physically unable to give notice. Such a person is given 90 days after he becomes physically capable of giving the notice. In Moore v. Truesdale , 48 N.J. Super. 257 (App.Div.1958), this court decided how the time for making a claim on ...