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Sanders v. Hunter

Decided: November 12, 1991.

MARION SANDERS, PLAINTIFF,
v.
LARRY HUNTER, JOHN DOE (FICTITIOUS NAME), RICHARD ROE (FICTITIOUS NAME), SAMUEL F. FORTUNATO, COMMISSIONER OF INSURANCE OF THE STATE OF NEW JERSEY, CVH SERVICES, CHAD HAGERTY AND ACME INSURANCE COMPANY (FICTITIOUS NAME), DEFENDANTS



ESSEX COUNTY

Rosemary Higgins Cass, J.s.c.

Cass

ROSEMARY HIGGINS CASS, J.S.C.

In this matter the defendant Commissioner moved to declare the plaintiff Marion Sanders (hereinafter Sanders) ineligible to recover benefits from the Unsatisfied Claim and Judgment Fund (UCJF) pursuant to N.J.S.A. 39:6-78(d), 39:6-85 and 39:6-86.6. Plaintiff opposed said motion. After hearing oral argument, I reserved decision to consider the inter-relationship of the several statutes herein implicated. I now hold that the Commissioner is not entitled to recovery against this complainant under N.J.S.A. 39:6-86.6.

For purposes of this motion, the following facts are assumed. Sanders operated an uninsured motor vehicle owned by C.V.H. Services.*fn* He was unaware that the automobile was not insured

on January 6, 1989, the date on which an accident occurred. Sanders was injured when the auto he was operating was struck by a "hit and run" driver, but he was able to obtain the license number of the fleeing auto and thus ascertain the name of the owner of the car as Larry Hunter. Sanders had no insurance policy of his own, nor did he reside in a household with automobile liability insurance.

The sole issue before me is whether N.J.S.A. 39:6-86.6 requires Sanders to repay to the Commissioner any recovery he might receive against the UCJF pursuant to N.J.S.A. 39:6-78(d) and 39:6-86.1 and 39:6-86.4. It is the Commissioner's contention that if he can recover from claimant under N.J.S.A. 39:6-86.6, then said provision should operate to bar Sanders from recovery in the first place.

N.J.S.A. 39:6-86.6 reads as follows:

39:6-86.6. Recovery of benefits paid by fund

The commissioner shall be entitled to recover on behalf of the Unsatisfied Claim and Judgment Fund for all payments made by it pursuant to sections 7 and 10 of this act, (1) regardless of fault, from any person who owned or operated the automobile involved in the accident and whose failure to have the required insurance coverage in effect at the time of the accident resulted in the payment of personal injury protection benefits. If the identity of the owner and operator is not ascertained until after personal injury protection benefits have been paid then the commissioner shall be entitled to recover for such payments, regardless of fault, from the operator if he was driving without the owner's permission or from the operator and the owner if he was driving with the owner's permission or, in either case, from the insurer if there is an insurance policy providing personal injury protection benefits that was in effect at the time of the accident with respect to such automobile.

The commissioner is authorized to bring an action, which shall be a summary proceeding, in the Superior Court to reduce the right provided by this section to judgment.

L.1972, c. 198, Sec. 12, eff. Jan. 1, 1973. Amended by L.1985, c. 148, Sec. 19, eff. April 24, 1985.

(1) Sections 39:6-86.1 and 39:6-86.4.

This statute must be interpreted in pari materia with several earlier sections of the UCJF law, ...


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