On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Antell, Brochin and Conley, t/a. The opinion of the Court was delivered by Conley, J.s.c., (temporarily assigned).
[232 NJSuper Page 407] Plaintiff pedestrian was struck by a hit-and-run motorist on November 5, 1985. As a result, he filed a complaint against the Unsatisfied Claim and Judgment Fund. Following a jury trial on the issue of damages, a verdict in the amount of $25,000 was returned. Thereafter, as required by N.J.S.A. 39:6-70 and 78, a hearing on the issue of plaintiff's eligibility was conducted by the trial court. Concluding plaintiff was not qualified for fund payments because at the time of the accident he owned an uninsured motor vehicle, the court dismissed the complaint. On
appeal, plaintiff argues the disqualification does not apply because his vehicle was inoperable.
The facts are not in dispute. At the time of the accident, plaintiff owned a 1974 Pontiac Grand Prix. It was registered and had current license plates. Prior to September 1985, plaintiff had operated the vehicle on a regular basis. Towards the end of September, the car blew a rod in the engine. It was towed to a garage for repair. Subsequent to the accident, the engine was repaired, plaintiff paid $400.00 and the vehicle was back on the road. At the time of the accident the vehicle had not yet been repaired because, according to plaintiff, he could not then afford it. Though plaintiff testified that the car was in the repair shop from the end of September to February 1986, the trial court made no findings of fact as to this but noted no supporting documents had been produced at the hearing, and referred to a post-hearing affidavit of an auto mechanic who could not recall the dates the car was in his garage.
There was no dispute that at the time of the accident the car, though registered, had no insurance. The record is not clear, however, as to whether, as contended by plaintiff, he had had insurance in September but let it lapse while the car was in the shop or, as the insurance documents indicate, his policy had been cancelled in January 1985, long before the break down and for reasons unrelated to its temporary inoperability.
It is the vehicle's temporary inoperability that plaintiff claims removes him from the disqualification. In pertinent part, N.J.S.A. 39:6-78 provides that no judgment may be entered against the Fund unless the applicant demonstrates that at the time of the accident he was not "the owner or registrant of an uninsured motor vehicle . . .". N.J.S.A. 39:6-78(c). See also N.J.S.A. 39-6:70(d).
"Uninsured motor vehicle" is defined as a motor vehicle without an insurance policy meeting the requirements of the "Motor Vehicle Security -- Responsibility Law". N.J.S.A. 39:6-62. "Motor vehicle" is not further defined in the Unsatisfied
Claim and Judgment Fund. N.J.S.A. 39:1-1, however, generally defines "motor vehicle" as including "all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles". It defines "vehicle" as "every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks" [emphasis added].
Focusing upon the "is or may be transported" language, we held in State v. DeMarco, 157 N.J. Super. 341 (App.Div.1978), that a vehicle in a state of partial disassembly in a repair shop was a "motor vehicle" within the meaning of N.J.S.A. 39:10-6 requiring certificates of ownership and registration. We said "a vehicle does not lose its character as such merely because it is temporarily inoperable," id. at 348, and found significant the fact that the owner of the shop was in the process of repairing the vehicle so that it could become operable. Id.
Similarly, plaintiff's vehicle was in the process of being repaired. Under the definition of "motor vehicle" in N.J.S.A. 39:1-1, as construed in State v. DeMarco, it did not lose its character as a motor vehicle because of its temporary inoperability.
The Supreme Court, however, has held the term "uninsured motor vehicle" in the Unsatisfied Claims and Judgment Fund law is synonymous with the term "uninsured automobile" in N.J.S.A. 17:28-1.1 requiring uninsured/underinsured motorist insurance. Gorton v. Reliance Ins. Co., 77 N.J. 563, 572 (1978). Thus, we must consider the definition of that term. We concluded in Government Employers' Ins. Co. v. Daniels, 180 N.J. ...