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Perry v. Brown

Decided: December 8, 1993.

SHARON PERRY, PLAINTIFF,
v.
ALBERT J. BROWN, ET AL, DEFENDANT.



Yanoff

Yanoff

YANOFF, JSC t/a (Retired, on recall)

This opinion is a supplement to that portion of Feuchtbaum v. Constantini, 59 N.J. 167, 280 A.2d 161 (1971), which authorized service upon the Unsatisfied Claim and Judgment Fund (N.J.S.A. 39:6-61 to -91. The Fuechtbaum case dealt with two classes of defendant: 1) a defendant having insurance coverage; and 2) a defendant without insurance coverage.

As to both, the Court ruled that service could be made in the case of the insured defendant, upon the insurance company, and in the case of the uninsured defendant, upon the Unsatisfied Claim and Judgment Fund, by the method provided by the decision. As to the insured defendant, the Court stated, or implied, that by service upon the insurance carrier, due process of law would be satisfied in a judgment against the defendant. Chief Justice Weintraub's opinion is illuminating:

The remaining consideration is fairness to the defendant. As to this, assuming he was aware of an involvement in an accident, as is the case here, it is the defendant's own behavior which, so far as we know, will deprive him of notice of the suit if it fails to reach him. Defendant gave the police an address in Hillside, New Jersey, where he apparently did live at that time. Later defendant departed, leaving no forwarding address with the postal authorities, or the police, or his employer, or the plaintiff, or with his carrier according to its representations. As Dobkin said, "in an automobile case, no defendant need be without notice unless he chooses and wants to be," 21 N.Y. 2d at 504, 289 N.Y.S. 2d at 173, 236 N.E. 2d at 459. Further, the carrier's interest in defeating plaintiff's claim will coincide with defendant's interest, and if the carrier should be able to disclaim because of defendant's disappearance (an issue which was recently dealt with in Dougherty v. Hanover Insurance Co., 114 N.J. Super. 483, 277 A.2d 242 (Law Div. 1971), and upon which we of course express no view here), the Fund will be obliged to take over, N.J.S.A. 39:6-65, and again, its interest in the defense of the case will be the same as defendant's. Thus there is a substantial promise that the merits of the controversy between plaintiff and defendant will be handled fairly. And, finally, there may remain an opportunity for defendant at some later date to seek relief from a judgment against him upon a just showing to that end. R. 4:50-1.

[Id. at 177-78.]

However, as to the uninsured defendant, the Court did not say that he would be bound by a judgment; instead,

Hence we are satisfied that where, as here, it appears from an adequate investigation that the defendant cannot be served by any of the prescribed modes, it is appropriate to order substitute service under R. 4:4-4(i). In the circumstances of these cases, that mode should be ordinary mail to defendant at his last known address. The order should also provide for notice to the Fund, not thereby to achieve service on the defendant, but rather to apprise the Fund of a situation with which it may be concerned.

Id. at 181 (emphasis added).]

The Court did not decide whether a judgment, in a case which the Fund defended, would bind the uninsured named defendant, even though he or she was not served. That issue is presented in this case. It arose from a motion for wage execution against Albert J. Brown, named as defendant. Brown made an application for a hearing. The facts to which reference is made emerged at the hearing and from an examination of the file.

Initial service was made by substitution. The attorney for plaintiff filed a certification stating that service of the summons and complaint was attempted upon the defendant, Brown, at an address in Morristown, and was returned marked "subject moved leaving no forwarding address with Post Office." Postal searches and motor vehicle searches turned out to be fruitless. Then, an attempt was made to serve him in Union County, where the return stated, "moved according to resident." The certification continues: "Since I have been unable to make personal service upon the defendant, Albert Brown, it is respectfully, requested that substituted service be allowed on the Unsatisfied Claim and Fund Board." An order for service pursuant to Fuechtbaum was made under date of November 20, 1992. The result was a judgment in favor of the plaintiff, on May 24, 1992. The order states 1992, but, in fact, the filing stamp shows that it actually was executed in 1993.

There is in the jacket a letter from a "Settlement Judge" dated August 18, 1992, in which he says:

Jason Winkler, counsel for defendant Heckstali was present. Another defendant (Brown) had not been served. Mr. Winkler had been retained by the Unsatisfied Claim and Judgement [sic] Fund and both parties agreed that the Fund might be brought into the case on behalf of the yet unserved defendant.

It is thus clear that at the time, all parties knew that Brown had not been served and that when the Fund was served he had no notice of the action. It is also clear that the Fund ...


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