On appeal from the Superior Court, Law Division, Essex County.
Morton I. Greenberg, J. H. Coleman and Gruccio. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court pursuant to our order of October 22, 1986 granting defendant Ohio Casualty Insurance Company leave to appeal from an order of September 12, 1986 denying Ohio's motion to dismiss the complaint as a matter of law. Inasmuch as the parties have made reference to essentially undisputed facts outside of the complaint, we refer to them in this opinion and thus treat the motion as being for summary judgment. See R. 4:6-2.
The case arises from an automobile accident on January 14, 1984 in which Clara Dickerson, a passenger in an automobile owned and operated by her daughter, Gail Dickerson, was injured when the Dickerson vehicle was struck by an automobile operated by Barry Mandell. Mandell asserted that an operator of an unknown vehicle caused him to lose control of his car and strike the Dickerson vehicle. Gail Dickerson had a liability insurance policy from plaintiff Rutgers Casualty Insurance Company including provisions for uninsured motorist coverage under N.J.S.A. 17:28-1.1. Clara Dickerson had similar coverage from Ohio.
As a result of the accident, Clara Dickerson filed a complaint against Mandell for her injuries which she settled with Mandell's insurance carrier for $14,000. On November 7, 1984 Clara Dickerson advised Rutgers that she was seeking uninsured motorist benefits. Consequently, on December 10, 1984 Rutgers sent its file to a law firm*fn1 representing it and in the covering letter stated that:
Plaintiff's counsel, a Pennsylvania attorney, has demanded a[n] Uninsured Motorist arbitration. Please nominate an arbitrator and defend the action. The arbitration must be held in the county in which the insured resides.
Additionally, the plaintiff's carrier [Ohio] should be put on notice as they are responsible for pro rata share of the verdict under the changes in the Uninsured Motorist Statute.
Notwithstanding the clear directions from Rutgers, its law firm did not put Ohio on notice of Clara Dickerson's claim and thus Ohio did not participate in the arbitration hearing. At that proceeding, the arbitrators concluded:
We have assessed liability in the amount of 70% on the unidentified vehicle that pulled out of Vine Street onto Brunswick Avenue. We assessed 30% responsibility on Mandel [ sic ]. We awarded damages in favor of the plaintiff of $27,500.00.
Thereafter, Rutgers filed this action against Clara Dickerson and Ohio seeking contribution for the uninsured motorist claim from Ohio pursuant to N.J.S.A. 17:28-1.1(c) and Rutgers' policy which had a provision for sharing losses with other carriers if other insurance was available. After filing an answer, Ohio moved for dismissal of Rutgers' complaint because it was never notified of the uninsured motorist claim and never participated in the arbitration hearing. Rutgers filed no answering papers on the motion which was, nevertheless, denied without opinion by the motion judge by the order of September 12, 1986.*fn2 We granted leave to appeal from that order.*fn3
Preliminarily, we note that notwithstanding Rutgers' contention in its brief that Ohio "had sufficient notice of the arbitration," Rutgers conceded at oral argument before us that Ohio did not have actual notice. Rather, Rutgers explained that in view of the police report which mentioned the ...