Dlugosz v. Fred S. James & Co.

• Decision Date: 24 April 1986
• Citation: 212 N.J.Super. 175,514 A.2d 538
• Parties: Joseph DLUGOSZ and Lorraine Dlugosz, Plaintiffs, v. FRED S. JAMES & COMPANY, James J. Maloney and the Township of South Orange Village, Defendants.
• Court: New Jersey Superior Court

Page 175

212 N.J.Super. 175

514 A.2d 538

Joseph DLUGOSZ and Lorraine Dlugosz, Plaintiffs, v. FRED S. JAMES & COMPANY, James J. Maloney and the Township of South Orange Village, Defendants.

Superior Court of New Jersey, Law Division Essex County.

Decided April 24, 1986.

Charles J. Farley, Jr., Cranford, for plaintiffs (Farley & Farley, Cranford, attorneys)

David M. Hawkins, Bloomfield, for defendants James J. Maloney and Tp. of South Orange Village (DeGonge, Garrity & Fitzpatrick, Bloomfield, attorneys).

Brian Corrigan, Woodbridge, for defendant Fred S. James & Co. (Michals, Wahl, Silver & Leitner, Woodbridge, attorneys).

VILLANUEVA, J.S.C.

This is an action by a former police officer against the municipality which had employed him, its administrator and its insurance agent, to compel them to release a compensation lien and corresponding damages. The complaint also alleged a cause of action for wrongful discharge as a willful and deliberate retaliatory act in violation of N.J.S.A. 34:15-39.1, designed to force him to settle his workers' compensation claim. His wife joined in the complaint in her individual capacity for emotional distress but made no per quod claim.

The sole issue on this motion for summary judgment by the municipality and its administrator is whether they have immunity under the Tort Claims Act for a cause of action based upon a retaliatory discharge by the township administrator.

The court holds that since plaintiffs admit that the act of the administrator in discharging Dlugosz was a "legislative or judicial" act, both the municipality and its administrator have immunity. N.J.S.A. 59:2-2(b), -3(b) and 59:3-2(b).

Plaintiff Joseph Dlugosz, a South Orange police officer, was injured in a work-connected auto accident on May 28, 1981.

This incident gave rise to legal remedies (1) in Workers' Compensation Court and (2) in a third-party action against the other driver. Defendant, Fred S. James & Company (hereinafter "James") is the workers' compensation claims agent for South Orange, which is self-insured.

The law provides that an employer who pays medical expenses, temporary or permanent disability to an injured employee is entitled to be reimbursed and have a lien against the proceeds of any recovery in a third-party action, N.J.S.A. 34:15-40, such as the suit against the other driver involved in this accident.

James, as agent for South Orange, paid medical bills incurred by Dlugosz and tendered checks to him for temporary disability which Dlugosz did not cash but endorsed over to South Orange. Dlugosz continued to receive his wages pursuant to the P.B.A. contract.

Prior to the trial of the third-party action, Dlugosz and South Orange agreed upon a settlement of the workers' compensation case.

Dlugosz in June 1983 settled the accident case for $100,000, all the insurance proceeds available. James was then requested to release the compensation lien so that the third-party carrier would pay all the settlement proceeds to Dlugosz; James refused to do so because of disputes with Dlugosz's attorneys.

However, James, on behalf of his client, South Orange, was dissatisfied with the compensation settlement so he hired new lawyers and had the compensation case reopened, and it is still pending.

Dlugosz, as a member of the South Orange P.B.A., was subject to the collective bargaining agreement with South Orange Village. Pursuant to the agreement, Dlugosz contended that he was entitled to full pay while unable to work, independent of and not subject to any workers' compensation lien. However, James J. Maloney, Township Administrator, construed the union contract to afford Dlugosz sick leave pay for Dlugosz resumed work May 1982, but stopped work April 1983 as a result of his total disability.

one year, at the end of which time an employee may be discharged.

Dlugosz was discharged on May 1, 1984 and South Orange stopped his pay, allegedly due to Maloney's interpretation of the union contract. Dlugosz contends he was discharged by Maloney in retaliation for his pursuing his workers' compensation claim. Dlugosz further claims he was improperly pressured to put in papers for retirement on May 1, 1984 when he had the 25 years necessary for retirement.

This suit was filed June 4, 1984 against James to force him to provide a release of lien and for damages for refusing to do so. It also sought from South Orange and Maloney back pay and damages for the alleged retaliatory discharge resulting from Dlugosz's pursuit of his workers' compensation claim.

Dlugosz brought a motion for summary judgment claiming he was entitled to back pay, i.e., that he should not have been discharged in May 1984 under the sick leave provisions of the union contract. The court held that he was wrongfully discharged and that his absence was primarily attributable to the 1981 accident, and therefore money should not have been deducted under sick leave provisions.

The court also determined that Dlugosz was entitled to the release of lien and ordered James to provide it, which was done. Plaintiffs' claims for compensatory and punitive damages for emotional distress remained.

This opinion supplements the court's reasons given in its oral decision granting summary judgment to South Orange and Maloney.

After the conclusion of plaintiffs' proofs in the trial against James for damages for failure to give plaintiffs a release of the workers' compensation lien, the court dismissed the complaint because it determined that the evidence, together with the Dlugosz contends that he has a viable cause of action for a discriminatory discharge in violation of N.J.S.A. 34:15-39.1 ¹ because the discharge allegedly was the result of his attempt to claim workers' compensation benefits. That statute was adopted in 1966 affording relief to anyone who was discriminated against for the filing of a compensation claim.

legitimate inferences which could be drawn therefrom, failed to show a violation of any duty owed by James to plaintiffs.

Now, basically, this statute provides both the common-law action and the administrative remedy for an employee who was discharged or discriminated against for claiming workers' compensation benefits. Galante v. Sandoz, Inc., 196 N.J.Super. 568, 483 A.2d 829 (App.Div.1984). The narrow legal question is whether the Tort Claims Act and the immunities provided therein afford immunity to a high-level public employee and a public entity for an alleged discriminatory discharge "of a legislative or judicial nature."

THE TORT CLAIMS ACT IS NOT LIMITED BY THE WORKERS'

COMPENSATION ACT BUT BOTH MUST BE CONSTRUED TOGETHER.

Plaintiffs' contention that there is no immunity in this case because it would violate a workers' compensation statute, N.J.S.A. 34:15-39.1, is without logic or case law support.

It is true that the Tort Claims Act should not be "construed to affect, alter or repeal any provision of the workmen's compensation laws of this State." N.J.S.A. 59:1-5. However, the workers' compensation statute relied upon by plaintiffs, N.J.S.A. 34:15-39.1, was adopted in 1966, six years before the Tort Claims Act was adopted. The only reported case dealing with There is no basis for finding that the immunities afforded by the Tort Claims Act should in any way be limited by any workers' compensation statute. It did not "affect, alter or repeal" any compensation law because there was sovereign immunity when the 1966 statute was adopted. Fitzgerald v. Palmer, 47 N.J. 106, 219 A.2d 512 (1966).

this statute, Lally v. Copygraphics, 173 N.J.Super. 162, 413 A.2d 960 (App.Div.1980), aff'd 85 N.J. 668 (1981), is distinguishable because it involved a private employer not a public entity employer.

There is nothing in the Tort Claims Act to suggest that the immunities contained therein were in any way intended to be bypassed or limited by the Workers' Compensation Act and, in particular, the retaliatory discharge provision.

JAMES J. MALONEY, ADMINISTRATOR FOR THE TOWNSHIP OF SOUTH

ORANGE VILLAGE, IS IMMUNE FROM SUIT FOR DAMAGES

BASED UPON HIS DETERMINATION TO

DISCHARGE PLAINTIFF.

Historically, public entities within the State of New Jersey enjoyed complete sovereign immunity in tort actions. Ibid. That long established immunity was abrogated by the Supreme Court in Willis v. Dept. of Conservation & Economic Development, 55 N.J. 534, 264 A.2d 34 (1970). After a short moratorium, a comprehensive study of sovereign immunity completed by the Attorney General resulted in the enactment of legislation known as the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., effective July 1, 1972.

The Tort Claims Act re-established sovereign immunity from tort liability absent specific provision within the act for liability. English v. Newark Housing Authority, 138 N.J.Super. 425, 428-429, 351 A.2d 368 (App.Div.1976). To that end, N.J.S.A. 59:1-2 states, in pertinent part:

... while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.

Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration. [Emphasis supplied]

The legislative intent is further indicated in N.J.S.A. 59:2-1(a), which provides:

Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

As applied to employees of public entities, N.J.S.A. 59:3-1(b) provides:

The liability of a public employee...