Bergen v. Miller
| Citation | 250 A.2d 49,104 N.J.Super. 350 |
| Decision Date | 05 February 1969 |
| Docket Number | No. A--1209,A--1209 |
| Parties | Virginia BERGEN and Jerrald Bergen, her husband, Plaintiffs-Appellants, v. Rufus W. MILLER, M.D., Defendant-Respondent. |
| Court | New Jersey Superior Court – Appellate Division |
John W. Devine, Trenton, for appellants (Pellettieri & Rabstein, Trenton, attorneys).
Bernard A. Campbell, Jr., Trenton, for respondent (McLaughlin, Dawes & Abbotts, Trenton, attorneys).
Before Judges CONFORD, KILKENNY and LEONARD.
The opinion of the court was delivered
Plaintiff Virginia Bergen filed a malpractice action against defendant doctor in the Law Division, claiming that he was negligent in diagnosing and treating her right index finger which was injured on April 30, 1965, when a metal rivet became imbedded in it in the course of her employment at the General Motors Ternstedt Division. Plaintiff's husband joined in the suit for his damages Per quod.
The trial court granted defendant's motion for a summary judgment on the ground that defendant was a fellow-employee of the injured plaintiff and by reason thereof immune from suit at law under N.J.S.A. 34:15--8. Plaintiffs appeal from the summary judgment in favor of defendant.
N.J.S.A. 34:15--8, L.1961, c. 2, provides Inter alia:
'If an injury or death is compensable under this article a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.'
The issue involved in this appeal is whether defendant doctor was a person 'in the same employ as the person injured' within the meaning of this statutory provision.
Defendant doctor was employed by General Motors, the same employer of the injured plaintiff, as the medical director of the General Motors dispensary at the Ternstedt Division in Ewing Township, New Jersey. His duties there were to treat employees of General Motors who were injured on the job and to perform certain medical examinations of General Motors' employees. At the time of the accident Dr. Miller received a salary from General Motors which constituted, and continues to constitute, substantially all of his income. The doctor spent, and spends, eight hours a day or more, on a five-day week or more, basis at this dispensary in the discharge of his duties. He maintains staff privileges at Mercer Hospital and as part of his duties often attends injured employees of General Motors at that hospital. On the basis of these facts, we agree with the finding of the trial court that defendant doctor was in the same employ as the injured plaintiff. No claim is made that...
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Boyle v. Breme
...the Act in 1979, L.1979, c. 283, without modifying the co-employee immunity provision despite the pronouncement in Bergen v. Miller, 104 N.J.Super. 350, 250 A.2d 49 (App.Div.), certif. denied, 53 N.J. 582, 252 A.2d 158 (1969), of the principle enunciated in this case. The employee's recover......
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...common law liability in tort by making an employee's compensation recovery his sole and exclusive remedy. Bergen v. Miller, 104 N.J. Super. 350, 250 A.2d 49 (Super.Ct.App.Div. 1969). To effect this purpose, N.J.S.A. 34:15-8 "Election surrender of other remedies "Such agreement to submit to ......
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Linden v. Solomacha
...to those involved in a common employment relationship or common enterprise. A similar argument was raised in Bergen v. Miller, 104 N.J.Super. 350, 250 A.2d 49 (App.Div.1969), certif. den., 53 N.J. 582, 252 A.2d 158 (1969). In that case, plaintiff, an employee of General Motors, had been tre......
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Boyle v. Breme
...landlord. We are disinclined to explore the doctrine further for we see no reason to depart from our holding in Bergen v. Miller, 104 N.J.Super. 350, 250 A.2d 49 (App.Div.1969), certif. den. 53 N.J. 582, 252 A.2d 158 (1969), a case hardly distinguishable from the one before us and certainly......