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Colangelo v. Bankers and Shippers Insurance Co.

Decided: February 25, 1982.

QUENTIN COLANGELO, PLAINTIFF,
v.
BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK AND STATE FARM INSURANCE COMPANY, DEFENDANTS



Lowengrub, J.s.c.

Lowengrub

This is a declaratory judgment suit for uninsured motorist coverage wherein defendants deny coverage on the grounds that the alleged no-contact, hit-and-run accident occurred in Pennsylvania and because plaintiff failed to give timely notice of the accident, as required by the policies. The validity of the policy provisions limiting uninsured motorist coverage to accidents occurring in New Jersey is a question heretofore undecided in this State.

On July 25, 1979 plaintiff was operating a tractor-trailer in Chester County in Pennsylvania while in the course of his alleged employment*fn1 by Alert Motor Freight of Burlington County, New Jersey. The tractor, which was owned by Delran Equipment Rental Inc., of Burlington County, New Jersey, and licensed to Alert Motor Freight, was being used in conjunction with a trailer owned by Alert. While thus engaged, plaintiff was involved in a one-vehicle accident when his truck ran over pieces of metal which allegedly fell from a vehicle proceeding ahead of, and in the same lane, as plaintiff's vehicle. A tire was punctured, causing plaintiff to lose control of his tractor-trailer and to strike a metal guard rail and a cement bridge abutment. Plaintiff cannot identify the vehicle from which the metal pieces allegedly fell; in fact, plaintiff must ultimately establish that the metal was on the roadway as a result of the use, operation or maintenance of a motor vehicle. Plaintiff alleges that he sustained personal injuries resulting from the accident.

At the time of the alleged accident, defendant Bankers and Shippers insured Delran, and State Farm insured plaintiff. Both motor vehicle policies contained an uninsured motorists clause as follows:

The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an

uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

State Farm and Bankers and Shippers, in addition to denying coverage, objected to a demand for arbitration.

The parties have stipulated through counsel that plaintiff did not report the accident to either insurance company within 30 days of the date of the accident of July 25, 1979, nor did he furnish them with a verified statement of a claim for damages arising out of the accident. By letter dated April 1, 1980 plaintiff's counsel advised both defendants of the existence of a claim for uninsured motorist benefits. Thereafter, neither defendant requested either a statement under oath or an opportunity to inspect the damaged vehicle.

The uninsured motorist endorsements attached to both policies are virtually identical. Paragraphs 4 thereof provide:

This insurance applies only to accidents which occur during the policy period and within the United States of America, its territories or possessions, or Canada.

The policy language is consistent with N.J.S.A. 17:28-1.1, which provides in part:

No automobile liability policy . . . of insurance insuring against loss . . . 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 . . . under provisions approved by the Commissioner of Insurance . . . for payment of all or part of the sums which the insured . . . shall be legally entitled to recover as damages from the operator of a (n) . . . hit and run automobile as defined in . . . (C. 39:6-78), . . . sustained by the ...


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