On Appeal from the Superior Court, Law Division, Camden County.
Brody and Long. The opinion of the court was delivered by Long, J.A.D.
On August 12, 1982, plaintiff David Kendall was a passenger in an uninsured motor vehicle owned and driven by his wife, Louise. The automobile was involved in an accident in which Kendall sustained serious injuries. He filed a complaint against defendant, Clifford Snedeker, the Director of the New Jersey Division of Motor Vehicles, seeking to recover damages from the Unsatisfied Claim and Judgment Fund (the Fund), N.J.S.A. 39:6-60 et seq. Defendant contested Kendall's entitlement to Fund benefits and moved for summary judgment.
At the time of the accident in 1982, N.J.S.A. 39:6-70(d) required that a person seeking to recover benefits from the Fund establish that "[h]e was not at the time of the accident operating or riding in an uninsured motor vehicle owned by him or his spouse. . ." N.J.S.A. 39:6-70(d) (emphasis added). The same prohibition applied to the recovery of Personal Injury Protection (PIP) benefits. N.J.S.A. 39:6-86.1. N.J.S.A. 39:6-70(d) was amended effective October 4, 1983, to require that a person seeking to recover from the Fund establish only that
"[h]e was not at the time of the accident the owner or registrant of an uninsured motor vehicle . . ." An identical change was made in N.J.S.A. 39:6-86.1, thus eliminating from the recovery scheme the interspousal bar which previously existed. Here, the parties conceded for the purposes of the summary judgment motion that under the pre-1983 law, Kendall was precluded from recovering from the Fund but that under the later amendment he would have been eligible to receive such benefits. The sole issue at the summary judgment motion was whether N.J.S.A. 39:6-70(d) and N.J.S.A. 39:6-86.1 should be applied retroactively. The trial judge thought not. We agree with him and affirm.
It is well-settled that generally statutes are to be applied prospectively. Gibbons v. Gibbons, 86 N.J. 515, 521 (1981); Skulski v. Nolan, 68 N.J. 179, 202 (1975); Commun. Workers v. Pub. Emp. Rel. Com'n., 193 N.J. Super. 658, 663-664 (App.Div.1984). The rationale supporting a general rule of prospectivity was noted in Gibbons, supra:
It is a fundamental principle of jurisprudence that retroactive application of new laws involves a high risk of being unfair. There is general consensus among all people that notice or warning of the rules that are to be applied to determine their affairs should be given in advance of the actions whose effects are to be judged by them. The hackneyed maxim that everyone is held to know the law, itself a principle of dubious wisdom, nevertheless presupposes that the law is at least susceptible of being known. But this is not possible as to law which has not been made. (2 Sutherland, Statutory Construction, § 41.02 at 247 (4th ed. 1973). [86 N.J. at 522 (citations omitted)]
According to Gibbons this rule of statutory construction is subject to several exceptions: where the Legislature has declared a contrary intent either expressly or impliedly, where the statute is ameliorative or curative and where the expectations of the parties may warrant retroactive application. 86 N.J. at 522-523.
Kendall claims that the amendment to N.J.S.A. 39:6-70(d) is "ameliorative or curative" and is therefore subject to retroactive application. Any assessment of this argument must begin with an analysis of the so-called ameliorative or curative exception.
We begin with the observation that ameliorative and curative are not synonymous terms and that they do not constitute one exception to the rule of prospectivity but two.
The ameliorative exception first appeared in New Jersey in the case of In re Smigelski, 30 N.J. 513, 527 (1959), in which the Supreme Court held that a statutory amendment restricting a juvenile's possible exposure to commitment was ameliorative and thus could be applied retroactively. For this proposition, the court cited People v. ...