concurring:
I concur in the result, but desire to add a comment.
As my brethren perceive, the basic right of action remained with the injured party and, of course, his insurance carrier had no right to pursue its subrogation claim in a way which would prejudice the insured’s basic right. It follows that filing an action in Justice Court, without the insured injured party’s informed consent, was wrongful and inconsistent with the carrier’s obligations to him. This, of course, would have given rise to a defense against the subrogation claim in Justice Court. Not having been affirmatively pleaded in avoidance, such defense was waived. NJRCP 8 (c).