On appeal from Superior Court of New Jersey, Law Division, Camden County.
J.h. Coleman and Stern. The opinion of the court was delivered by Stern, J.A.D.
This appeal requires us to decide if a pedestrian injured by an uninsured vehicle can collect benefits from the Unsatisfied Claim and Judgment Fund (the Fund) if the notice of claim is filed within 15 days of discovery that insurance coverage had been canceled prior to the accident for non-payment of a premium. We must decide the issue in circumstances where plaintiff relied upon a police report which included information that the vehicle was insured, apparently obtained from the insurance identification card produced by the driver.
On September 13, 1986 while walking near the intersection of 27th Street and Sherman Avenue in Camden, plaintiff was injured when struck by a vehicle owned by defendant Henry Ready and driven by defendant Patricia Zomies. After striking
plaintiff, the vehicle left the scene, but witnesses apparently observed the plate number, and the car was located shortly thereafter.*fn1 In any event, a police accident report was prepared in which all relevant information was noted. The report included a description of the vehicle, the governing policy, "JUA 402-2146", and the carrier identification number "227." Apparently, the investigating officer obtained the insurance information by review of the insurance identification card produced by the driver.
On March 12, 1987 plaintiff's counsel wrote Ready's carrier, National Surety Corporation of California, asking it to "acknowledge coverage." In the absence of a response, on April 23, 1987 plaintiff's counsel wrote to the carrier's parent insurer, the Fireman's Fund Insurance Companies (Fireman's), making the same request. By letter dated June 1, 1987 a representative of the Fireman's wrote plaintiff's counsel that "[a]ccording to Mr. Ready's agent, Anderson Agency, this insured was canceled on August 25, 1986 for automobile coverage. The reason for cancellation was non-payment of premium."
Within fifteen days of receipt of Fireman's letter (and 15 days after it was dated), by letter dated June 16, 1987 counsel for plaintiff wrote to the UCJF Board detailing the background and requesting it to "consider this letter as my client's notice of intention to make claim against" the Fund. There was no response to this "notice." The record contains a return receipt, and there is no present contest addressed to the date of mailing or receipt.*fn2 The parties before us have treated the "notice" as
having been mailed within 15 days of receipt of the carrier's letter of June 1, 1987 advising that there was no coverage.
On August 29, 1988 plaintiff filed suit against Ready and Zomies, with notice to the Fund. Ready could not be served. Zomies was served but defaulted. A proof hearing was thereafter conducted on notice to the Fund. (The judgment states it occurred on October 19, 1989, but plaintiff tells us it was further adjourned until November 13, 1989). By order dated November 13, 1989 judgment was entered against Zomies in the amount of $12,000.00 together with pre-judgment interest of $916.59.
By motion filed April 19, 1990 counsel for the Fund moved on behalf of Zomies to vacate the default judgment. Counsel certified that the file was received from GAB Business Services on April 3, 1990, that no "timely notice of claim" was filed with the Fund and that there was "a meritorious defense." She specifically certified that notice was not given until June 16, 1987 "approximately nine (9) months after the accident . . . [and] that there was no 'disclaimer on a policy of insurance by an insurance company.'" Finally, counsel asserted "good cause", "excusable neglect" and "good faith" in seeking to vacate the default. After argument the motion was denied by an undated order in May of 1990. Thereafter, plaintiff moved for an order requiring payment from the Fund. Judge Samuel L. Supnick granted the motion after argument on ...