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Cano v. Malone

Decided: September 29, 1989.

LUZ CANO, PLAINTIFF,
v.
JAMES MALONE, UNSATISFIED CLAIM AND JUDGMENT FUND, JOHN DOE, BEING THE FICTITIOUS NAME OF THE OWNER OF THE UNIDENTIFIED VEHICLE, RICHARD ROE, BEING THE FICTITIOUS NAME OF THE DRIVER OF JOHN DOE'S VEHICLE, STATE FARM INSURANCE COMPANY, AND PENNSYLVANIA NATIONAL MUTUAL INSURANCE CO., DEFENDANTS



Menza, J.s.c.

Menza

The issue in this case is whether the "discovery rule" may be utilized to extend the time in which a notice of intention to make a claim must be filed with the Unsatisfied Claim and Judgment Fund Board, (fund). This question is a novel one.

Defendant Malone was involved in a collision with an unidentified vehicle which caused his vehicle to strike the house in which plaintiff resided. Plaintiff was injured as a result of the accident and has brought suit against Malone and the fund. The claim against the fund is based on the assertion that a "phantom" car was involved in the accident.

The police report of the incident states:

Driver # 1 states that while proceeding west on Westfield Avenue, Vehicle # 3 swerved towards him, causing Vehicle # 1 to strike the rear of Vehicle # 2. Vehicle # 1 then struck 43 Westfield Avenue, causing resident Luz Cano to complain of headaches. . . .

Vehicle # 1 is identified in the police report as the Malone vehicle. Vehicle # 2, a parked car, is identified as the vehicle of one Ediznia Barrios. Vehicle # 3 is identified in the police report only with the letter "U."

Defendant fund moves for summary judgment on the basis that plaintiff failed to file a notice of intention to make a claim with the fund within the 90 day requirement of the statute.

Plaintiff claims that he did not know that an unidentified vehicle was involved in the accident until he received a letter from Malone's insurance company denying liability.*fn1 He states that on receipt of the letter, he immediately filed a notice with the fund -- a period of 163 days after the date of the accident. Plaintiff argues that since he was unaware of the existence of the "phantom" car, for a period of time following the accident, the discovery rule is applicable, and therefore, his filing of the

notice of claim within 90 days of receiving the carrier's letter was proper.

Defendant argues that the discovery rule is inapplicable to the 90-day provision of the fund statute. He contends, moreover, that even if it is applicable, it is not appropriately applied in the instant case because the police report clearly indicates that a "phantom" car was involved in the accident.

N.J.S.A. 39:6-65, the notice statute, provides:

Notice of accident and intention to ...


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