APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 669-73).
Gibbons, Biggs and Weis, Circuit Judges. Biggs, Circuit Judge, dissenting.
The question presented here is whether the United States is bound by the provision of a state statute which requires that those claiming benefits under the Act shall file a notice of intent within a specified time. The district court held that the time requirement was not a statute of limitations and that the federal government must abide by the notice provision. We agree and affirm.
The appeal is from an order dismissing one of the government's two counts in a complaint based on the Federal Medical Care Recovery Act, 42 U.S.C. §§ 2651-2653.*fn1 The suit was brought to recover the cost of medical and hospital care provided two members of the armed services injured in an automobile accident in New Jersey. The defendants Studivant are the owner and operator of the car in which the servicemen were passengers, and the other defendant, John A. Waddington, is the Director of Motor Vehicles of New Jersey.
The government alleges that the Studivants operated their automobile in a negligent manner on June 7, 1970 and that they are liable for the government's expenditures in treating the servicemen's injuries. It appears that the Studivants are uninsured and unable to satisfy a judgment against them. They have never been served with process and the count against them is not before us.*fn2
The second count of plaintiff's complaint asserts a claim against the Unsatisfied Claim and Judgment Fund Board of New Jersey, which functions under the jurisdiction of defendant Waddington. The government contends that it is a "qualified person" as defined by the New Jersey Statute and thus is entitled to be paid by the fund because of inability to recover from the Studivants.
The defendant Waddington filed an answer on behalf of the Board setting forth a number of defenses, including the government's failure to give timely notice of its claim as required by the statute. The district court was persuaded by this point, granted the Board's "Motion for Judgment on the Pleadings," and dismissed the complaint as to Waddington.
New Jersey maintains an Unsatisfied Claims Fund to provide relief for victims of automobile accidents who are unable to collect damages from financially irresponsible tortfeasors. The enabling legislation contains certain restrictions, including a restrictive definition of "qualified persons" who are eligible for benefits and a requirement of timely notice of intent to submit a claim. N.J.S.A. § 39:6-65 provides in part that "as a condition precedent" to a right of payment from the fund, a "qualified person" must give "notice to the board within 15 days of receiving notice that an insurer had disclaimed on a policy of insurance."*fn3
The government avers that, while the registration of the Studivant car certified that it was covered by the Allstate Insurance Company, on March 15, 1971 the carrier advised that neither Studivant was insured.*fn4 The government did not file its notice with the Board until May 25, 1971, more than seven weeks after the statutory time had expired. The United States takes the position that the time specified in the New Jersey Statute is in the nature of a statute of limitations which is not applicable to it.
A state statute of limitations is not binding on the United States in a suit under the Federal Medical Care Recovery Act. United States v. Gera, 409 F.2d 117 (3d Cir. 1969). See United States v. Summerlin, 310 U.S. 414, 84 L. Ed. 1283, 60 S. Ct. 1019 (1940). The question presented then is whether the time set for giving notice is a statute of limitations.
Preliminarily, we note that a statute of limitations is a restriction on the time within which a party may institute proceedings in an appropriate court.*fn5 The limitations do not affect the merits of the controversy or the underlying right to recover, but rather are directed toward setting the time when resort must be had to the court. By way of contrast, a condition precedent affects the cause of action itself, the right of a party to obtain judicial relief, and not the time when suit must be filed.
The New Jersey statute terms the requirement of notice to the Board "a condition precedent." This requirement goes to the validity of the claim itself: absent the required notice, the injured party has no right under the statute to receive compensation. Keith v. Petrakakas, 98 N.J. Super. 153, 236 A.2d 402 (1967), aff'g, 95 N.J. Super. 262, 230 A.2d 543 (1967). Payment from the fund is not based on a common law right but ...