This consolidated action comes before this court by way of cross-motions for summary judgment pursuant to R. 4:46-2.
On June 24, 1980, Robert Montague was struck by an automobile as he walked along a road with his wife, Mary Montague, who at the time was three months pregnant. He died shortly thereafter on July 1, 1980.
On July 3, 1980, Alfred Petit-Clair, Jr., Esquire filed a wrongful death action on behalf of Mary Montague. The complaint in paragraph 6 alleged that "decedent left surviving him, his wife, plaintiff, Mary Montague, age 19, and one unborn child scheduled for birth in January 1981."
On August 6, 1980, Mary Montague received Letters of Administration and Letters of Administration Ad Prosequendum. A bond in the amount of $1,000 was posted.
Sometime in early August, 1980, the litigation was settled by Petit-Clair with Royal Insurance Company (hereinafter referred to as Royal) for $87,000 on a $100,000 policy.
On August 13, 1980, two general releases were executed by Mary Montague individually and in her capacity as Administratrix and Administratrix Ad Prosequendum*fn1 of the Estate of Robert Montague. Both releases certified that neither Robert Montague nor Mary Montague left any living issue. The settlement monies were then paid by Royal to Petit-Clair, who disbursed the funds to Mary Montague.
Plaintiff Stephen Wozniak, by his guardian Ad Litem, John J. Wozniak, contends that Royal was negligent in that it failed to
follow procedural requirements prescribed by statute and court rule and did not adhere to a reasonable standard of care in paying out the settlement monies. Royal is therefore said to be liable to Stephen Wozniak for his rightful share of the proceeds recovered in the Wrongful Death Action.
The Wrongful Death Statute N.J.S.A. 2A:31-6 provides in pertinent part that:
When an action is commenced by an Administrator ad prosequendum under this chapter, no payment in settlement thereof or in satisfaction of a judgment rendered therein shall be made to him, but such payment shall be made only to the duly appointed general administrator of the estate of the decedent, who has filed a bond or supplemental bond ...