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Wilson v. Unsatisfied Claim and Judgment Fund Board

Decided: September 3, 1985.

GAYNELLE WILSON, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR FREDERICK WILSON, A MINOR, PLAINTIFF,
v.
UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT



Haines, A.j.s.c.

Haines

The question before the court is whether a passenger in an uninsured automobile, struck by an insured vehicle, may recover medical expenses from the Unsatisfied Claim and Judgment Fund (UCJ) without first obtaining and exhausting efforts to collect the expenses from the insured driver or owner. The only reported decision of this issue, Pearman v. Unsatisfied Claim and Judgment Fund Bd., 185 N.J. Super. 397 (Law Div.1982), required exhaustion. This opinion reaches the opposite conclusion.

Frederick Wilson, age 5, was a passenger in his uncle's uninsured automobile when it was struck in the rear by an insured school bus owned by the Moorestown Township Board of Education. Frederick was injured. He incurred medical expenses which would have been payable under the personal injury protection (PIP or PIPC) provisions of his uncle's policy of insurance, had his uncle been insured. Since he was not,

they are payable by the UCJ, absent some disqualification or exclusion.

Relying on Pearman, The UCJ moves for summary judgment on the ground that Frederick has no claim against the Fund because he can recover his losses from an insured defendant, the Moorestown Board of Education. Frederick cross moves for summary judgment on the ground that Pearman is wrong. There are no factual disputes and this opinion disposes of the litigation.

A. The Statutes

We are concerned here with the two statutes: The Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61, et seq, adopted in 1952, and The New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1, et seq, known as the "No Fault Law", effective June 20, 1972. The compulsory insurance, PIP coverage benefits and tort exemption provisions of the No Fault Law became mandatory on January 1, 1973. The Unsatisfied Claim and Judgment Fund statute was amended by L. 1972, c. 198 to match the mandatory insurance provisions of the No Fault Law, making both effective on January 1, 1973. That is the date on which N.J.S.A. 39:6-86.1 and N.J.S.A. 39:6A-4, of special interest here, became effective. The provisions of their initial paragraphs reveal their close connection:

N.J.S.A.39:6A-4 N.J.S.A.39:6-86.1

Personal injury protection coverage When any person qualified to receive

regardless of fault. Every Automobile payments under the provisions of the

liability insurance policy insuring "Unsatisfied Claim and Judgment Fund

against loss resulting from liability Law," suffers bodily injury or death

imposed by law for bodily injury, arising out of the ownership,

death and property damage sustained by operation or use of an automobile, as

any person arising out of ownership, defined in P.L.1972, c. 70, registered

operation maintenance or use of an or principally garaged in this State

automobile shall provide additional for which personal injury protection

coverage, as defined herein below, benefits under the "New Jersey

under provisions approved by the Automobile Reparation Reform Act"

Commissioner of Insurance, for the would be payable to such person if

payment of benefits without regard to personal injury protection coverage

negligence, liability or fault of any were in force and the damages

kind, to the named insured and members resulting from such automobile

of his family residing in his accident or deaths ...


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