Markey v. Skog

• Decision Date: 21 June 1974
• Parties: Marie MARKEY and William F. Markey, her husband, Plaintiffs, v. Carl SKOG, Defendant and Third-Party Plaintiff, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, Third-Party Defendant.
• Court: New Jersey Superior Court

Page 192

129 N.J.Super. 192

322 A.2d 513

Marie MARKEY and William F. Markey, her husband, Plaintiffs, v. Carl SKOG, Defendant and Third-Party Plaintiff, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, Third-Party Defendant.

Superior Court of New Jersey,

Law Division.

June 21, 1974.

Jack A. Maloof, Bloomfield, for defendant and third-party plaintiff (Colquhoun, Kennedy & Brogan, Bloomfield, attorneys; Jack A. Maloof, Bloomfield, on the brief).

John S. Fitzpatrick and Thomas D. Monte, Jr., Trenton, for third-party defendant (William F. Hyland, Atty Gen., attorney; Thomas D. Monte, Jr., Trenton, on the brief).

PRESSLER, J.C.C., Temporarily Assigned.

This automobile negligence action, by reason of the third-party complaint filed by defendant Carl Skog against the New Jersey Department of Transportation (hereinafter 'State'), raises an important question of construction of the New Jersey Tort Claims Act, N.J.S.A. 59:1--1 et seq., which has not heretofore been dealt with by any reported decision of our courts. That question, posed by the motion of the State for dismissal of the third-party complaint, is whether the viability of the right of a nonpublic defendant to seek contribution from a public entity as a joint tortfeasor is dependent upon plaintiff having complied with the claim presentation requirements of N.J.S.A. 59:8--8. For the reasons hereinafter set forth, the court has determined that it is not.

The essential facts involved in this litigation, insofar as they are implicated in the motion to dismiss the third-party complaint, are undisputed and may briefly be stated. Plaintiffs Marie Markey and William F. Markey (hereinafter 'Markey'), were, on October 28, 1972 passengers in Skog's automobile which he was then driving on Route 23 southbound in Riverdale, New Jersey. They claim to have been injured when Skog's automobile collided with a traffic island curbing in the roadway. They filed their complaint against Skog in October 1972, alleging negligence on his part in his operation of his vehicle. Skog was served on October 30, 1972 and filed and served his answer in due course. On August 15, 1973 Skog filed a notice of motion, served only upon plaintiffs in accordance with R. 4:8--1, seeking leave to file and serve a third-party complaint against the State. An order granting such leave was entered on September 19, 1973 and within the ensuing week the third-party complaint was filed and served, seeking contribution from the State as a joint tortfeasor on the theory, as it thereafter appeared, that the State's negligence in its design and maintenance of the roadway in question was a substantial contributing cause of the accident. ¹

It is conceded that plaintiffs have never made a direct claim against the State in respect of this accident on this or any other theory; that they have not, since the filing of the third-party complaint, sought leave to amend their complaint to seek direct relief from the State, and finally, that they have not, despite the State's notice to them of the pending motion to dismiss, participated in these proceedings at all. It is further conceded that the State's first notice of plaintiffs' accident and of the defendant's contribution claim was the third-party complaint served upon it some 11 months after the event.

The State's answer to the third-party complaint denies negligence and alleges, by way of affirmative defense, that its sovereign immunity bars the contribution claim, and it is essentially the sovereign immunity defense which is being urged in support of its pending motion. The State's basic contention is that the New Jersey Tort Claims Act, effective July 1, 1972, does not constitute an abrogation of the doctrine of sovereign immunity but rather is a limitation on the application of that doctrine pursuant to which the State has agreed, in effect, to recognize and permit the adjudication against it only of certain tort claims of a defined substantive nature and provided, further, that such claims are processed, presented and proceeded upon in accordance with the strict procedural requirements of the act. Hence, it argues, if a plaintiff fails to perfect his claim against the State by having failed to comply with the procedural requirements of the act, the State is not only not liable to the plaintiff but is also relieved of liability in respect of all consequences of its alleged negligence, including liability to a joint tortfeasor for contribution.

The State seeks to support this conclusion by a literal construction of the act, relying first on N.J.S.A. 59:8--3, which provides that 'No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.' The State then points to N.J.S.A. 59:8--8, which provides that 'A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action.' That section further provides that 'the claimant shall be forever barred from recovering against a public entity if' he has failed to file his claim with it within 90 days after its accrual unless, pursuant to N.J.S.A. 59:8--9, he has obtained leave from the Superior Court extending the filing time for one year following the accrual of the claim. The State urges that the word 'claim,' as used in both N.J.S.A. 59:8--3 and 59:8--8, must be construed to mean the primary claim of the person who has sustained the death, personal injury or property damage resulting from the public entity's alleged negligence. Thus, it reasons, if the primary claim is barred by the primary claimant's inaction during the 90-day period, the State is no longer liable to the primary claimant and, therefore, cannot be liable to any derivative claimant, including a joint tortfeasor. The logical consequence of this position, which it asserts by way of a supplemental brief, is that a private joint tortfeasor seeking contribution does not have any procedural device available to him to cure a plaintiff's failure to have pursued the statutory remedy against the public entity, and thus cannot preserve his right to contribution against the State even if he were himself to put the public body on notice within the 90-day period. The State insists, therefore, that a private joint tortfeasor's right to contribution from it is exclusively dependent on the plaintiff's unilateral election to seek recovery from the State in accordance with the act.

It is the court's conclusion that the State's argument misconceives not only the history, purpose and construction of the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A--1 et seq., but also the history and purpose of the New Jersey Tort Claims Act.

The adoption by the Legislature in 1952 of the Joint Tortfeasors Contribution Law obviously proceeded from its intention to alleviate the evident harshness and inequity of the common-law rule then obtaining in this State pursuant to which there was no right of joint tortfeasors to seek allocation among themselves of the burden of their fault. Under the common-law rule plaintiff was not only free to determine which among joint tortfeasors, if less than all, he chose to sue but was also free to determine which of them, if he obtained judgment against more than one, he would charge with the burden of satisfying the judgment and, if more than one, in what proportion. The right of contribution which is afforded by the 1952 act constitutes a recognition of the equitable doctrine that a 'tortfeasor who satisfies the judgment is entitled to be put on the same footing with those who are equally liable for the wrong remedied by the judgment.' Kennedy v. Camp, 14 N.J. 390, 398, 102 A.2d 595, 600 (1954). The public-policy basis of the contribution doctrine was further articulated by Justice Heher in Kennedy as follows:

Apart from its foundation in the 'clearest principles of natural justice', the doctrine 'has an equal foundation in morals; since no one ought to profit by another man's loss; where he himself has incurred a like responsibility. Any other rule would put it in the power of the creditor to select his own victim; and, upon motives of mere caprice or favoritism, to make a common burden a most gross personal expression. It would be against equity for the creditor to exact or receive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment.' Story's Equity Jurisprudence (11th ed.), sections 492, 493. The gravamen of the action for contribution is the discharge of the joint tortfeasor's common liability for the common wrong, enforceable by action at the instance of the injured person.

See also, Tino v. Stout, 49 N.J. 289, 295--297, 229 A.2d 793 (1967).

It is clear that a defendant's right to contribution from a joint tortfeasor is, therefore, an inchoate right which does not ripen into a cause of action until he has paid more than his pro rata portion of the judgment obtained against him by the plaintiff. It is at that point that his cause of action for contribution accrues. See McGlone v. Corbi, 59 N.J. 86, 94--95, 279 A.2d 812 (1971). The ascertion by codefendants in a negligence action of a right of contribution Inter sese and the right of a defendant to implead a joint tortfeasor by a third-party complaint before plaintiff's cause of action has been reduced to a judgment are merely devices of procedural convenience afforded by the rules of practice. See R. 4:7--5 and R. 4:8--1. Thus, although a defendant is not necessarily bound to proceed against joint tortfeasors in the same action in which plaintiff seeks to establish his (defendant's) liability, he ordinarily will, nevertheless, do so because a single action is the most orderly and logical manner in which proof of common liability can be established--and it is, of...