Polyard v. Terry

• Decision Date: 28 January 1977
• Citation: 148 N.J.Super. 202,372 A.2d 378
• Parties: George POLYARD, as Administrator Ad Prosequendum for the heirs at law of Dorothy Ferreira, deceased, and General Administrator of the Estate of Dorothy Ferreira, deceased and Herbert Ferreira, against the state and a joint tort-feasor and v. David TERRY et al., Defendants.
• Court: New Jersey Superior Court

Page 202

148 N.J.Super. 202

372 A.2d 378

George POLYARD, as Administrator Ad Prosequendum for the heirs at law of Dorothy Ferreira, deceased, and General Administrator of the Estate of Dorothy Ferreira, deceased and Herbert Ferreira, against the state and a joint tort-feasor and v. David TERRY et al., Defendants.

Superior Court of New Jersey Law Division.

Jan. 28, 1977.

Joseph L. Kramer, Teaneck, for plaintiffs.

Thomas F. Marshall, Willingboro, for defendant State of N.J. (William F. Hyland, Atty. Gen., attorney).

PETRELLA, J.S.C.

This proceeding arises in part as a result of a jury verdict for plaintiffs in favor of the administrator Ad prosequendum of the estate of the deceased, Dorothy Ferreira, under the Wrongful Death Act (N.J.S.A. 2A:31--1), and the Survival Act (N.J.S.A. 2A:15--3), and in favor of plaintiff Herbert Ferreira in his personal injury action against defendants Terry and the State of New Jersey. The State also has moved for a new trial on various grounds. This motion was denied and only a limited aspect thereof is discussed in Point III, Infra.

Plaintiffs and the State dispute application of principles of contribution law to joint tortfeasors as they apply under the New Jersey Tort Claims Act (N.J.S.A.) 59:1--1 Et seq.).

Plaintiffs settled with defendant Terry prior to trial for a payment of $15,000 to the administrator (without allocation between the death and survival actions), and for $10,400 to Herbert Ferreira. ¹ Plaintiffs settled during trial with defendant Heil (who had been driving immediately behind the Ferreira vehicle) for $2,500 and a covenant not to sue (without allocation between the causes of action) in full satisfaction of all claims. A pretrial order had been entered confirming the nonliability of the settling defendant Terry for any further contribution. Compare Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (Sup.Ct.1963). The negligence issues as to the State and the settling tortfeasors were submitted to the jury which found defendant Terry and the State negligent. ² Heil was found not to be a joint tortfeasor.

The defense of plaintiffs' negligence was dismissed at the end of the case by consent as to plaintiff Ferreira and over objection as to decedent. (See Part III). Upon request of the deputy attorney general representing the State, the jury was asked to find not only which defendants, if any, were negligent, but also percentages of negligence attributable to such defendants as appears to be required on the face of N.J.S.A. 59:9--4(b) (discussed Infra). The jury attributed 70% Of the negligence to Terry and 30% To the State.

The jury awarded plaintiff administrator $135,000 in the death action, and $8,949 in the survival action. ³ Plaintiff Herbert Ferreira was awarded $15,000.

I

The State here seeks to limit its liability to 30% Of the verdict, or alternatively, to no more than a Pro rata share of 50% Of the verdict, less credits. N.J.S.A. 59:9--3 states, among other things, that 'Notwithstanding any other law,' where a public entity is a joint tortfeasor the public entity can be required to contribute to a joint tortfeasor only to the extent of the recovery provided for under this act. This limits claimants from collecting from the State to those areas where recovery is allowed under the act (and subject to the limitations in N.J.S.A. 59:9--2). This restrictive philosophy is mirrored in the 1972 comments ⁴ to N.J.S.A. 59:9--3(a). Here the converse situation exists and the State seeks credits based on the settlements.

Any amount received by an injured plaintiff on account of a settlement which was 'paid by an alleged tortfeasor shall be reduced Pro tanto from the injured party's judgment against any other tortfeasor.' N.J.S.A. 59:9--3(b).

This language changes part of the rule of Theobold v. Angelos, 40 N.J. 295, 191 A.2d 465 (1963) (and see the 1965 decision reported at 44 N.J. 228, 208 A.2d 129), as it applies to cases involving public entities as defendants. Indeed, the 1972 comment to N.J.S.A. 59:9--3 expressly states that section's purpose Is just that as to subparagraph (b), which

* * * mandates that any settlement by a joint-tortfeasor in a suit involving a public entity Or public employee shall be deducted Pro tanto from any judgment against another joint tortfeasor. This provision changes the existing law which provides that when a joint tortfeasor settles with a claimant there will be a Prorata with a claimant there will be a Pro rata reduction of the judgment against words, the plaintiff does not now (before the act) recover the full amount of his judgment if he settles with a joint tortfeasor below his Pro rata share of the judgment (to the extent of the difference). (Brackets supplied)

Such statements or comments can be considered in determining legislative history. See Raybestos-Manhattan, Inc. v. glaser, 144 N.J.Super. 152, 168--171, 365 A.2d 1 (Ch.Div.1976), and Caldwell v. Rochelle Park Tp., 135 N.J.Super. 66, 74, 342 A.2d 583 (Law Div. 1975).

The reference to plaintiff not Now receiving the full judgment (see inserted bracketed phrase), refers to the state of the law before the act, based upon Theobold v. Angelos, supra (40 N.J. 295, 191 A.2d 465). In other words, if a plaintiff settled with a joint tortfeasor below his Pro rata share, plaintiff could not recover the difference between that amount and the Pro rata share, and does not receive his full judgment.

That comment further states:

The above provisions would rectify this inequity and permit a plaintiff to recover from any non-settling tortfeasor the difference between the total amount of his judgment and the amount of any settlement he may have reached. In addition to more fairly and fully compensating an injured plaintiff, this provision will undoubtedly encourage settlements by all parties.

Thus, this section of the law contains a specific intent to clearly change the existing law in part as to public entities, under the New Jersey Joint Tortfeasors Contribution Law (N.J.S.A. 2A:53A--1) and the Theobold cases. The comment reference to 'non-settling tortfeasor' reinforces the proposition that neither plaintiff nor any nonsettling joint tortfeasor can recover in this action any further contribution from any settling tortfeasor. Here plaintiffs can recover the full amount of the jury verdict from the State to the extent the act allows recovery against a public entity, less Pro tanto reductions for the two settlements. Plaintiffs would then be fully compensated (subject to possible adjustments--see N.J.S.A. 59:9--2). In the usual case this would further the intended policy under the act of encouraging settlements.

The State argues that the omission of the language contained in N.J.S.A. 2A:15--5.3, the general comparative negligence statute, from the Tort Claims Act evinces an intent that plaintiffs cannot recover their full verdicts (less settlements) against the public entity. The Tort Claims Act, however, contains separate and distinct authority for contribution in suits involving a public entity. N.J.S.A. 59:9--3. An examination of the contribution (N.J.S.A. 59:9--3) and comparative negligence (N.J.S.A. 59:9--4) sections of the Tort Claims Act, and legislative history indicates that the Tort Claims Act must be read In pari materia with the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A--1 Et seq., to the extent not inconsistent. See N.J.S.A. 59:1--2 and 59:12--2.

The contribution provisions in the New Jersey Tort Claims Act are not irreconcilable with N.J.S.A. 2A:53A--1, which is superseded only to the extent inconsistent with N.J.S.A. 59:9--3. The 1972 comments to that section recognize this (while misciting the precise statutory reference in, for example, the first paragraph thereof); and see Cancel v. Watson, 131 N.J.Super. 320, 329 A.2d 596 (Law Div. 1974), and Markey v. Skog, 129 N.J.Super. 192, 322 A.2d 513 (Law Div. 1974). This section in the New Jersey Tort Claims Act, with the exception noted, is governed by cases such as Theobold v. Angelos, interpreting, where consistent, the Joint Tortfeasors Contribution Law. It is unnecessary for the Tort Claims Act to state expressly that N.J.S.A. 2A:53A--1 and appropriate case law applies.

The State argued alternatively that since it was found only 30% Negligent its liability, even where a plaintiff is not negligent, should not exceed that percentage. The court is of the opinion that findings of a percentage of negligence between joint tortfeasors is unnecessary and has no application between joint tortfeasors where plaintiff is not negligent. Where a plaintiff is not guilty of any 'contributory' negligence the doctrine of comparative negligence is not involved. See Issen v. Lincenberg, 293 So.2d 777, 778 (Fla.App.1974). The apparent requirement for such findings in N.J.S.A. 59:9--4(b) (modelled after N.J.S.A. 2A:15--5.2(b) ⁵ is superfluous in such a situation. Subparagraph (b) of the comparative negligence provisions of the Tort Claims Act is irrelevant where either plaintiff is not negligent or no defendant is found negligent (except where an appellate court could actually enter a contrary judgment). Section 59:9--4 also states that contributory negligence is no bar if the plaintiff's negligence is not greater than the defendant's--'but any damages sustained shall be diminished by the percentage of negligence Attributable to the person recovering.' (Emphasis supplied). Thus, a verdict is reduced only by the amount, if any, of plaintiff's negligence.

II

There remains the problem of allocation of the settlement amounts. It is possible to allocate the $15,000 paid to the administrator by joint tortfeasor Terry either Pro rata ⁶ based on a percentage allocation of the award in the two types of action, or by an equal division of $7,500 in each action. Likewise, the $2,500 settlement sum from nontortfeasor Heil can be divided on a percentage allocation ⁷ or on a one-third each basis.

Pro rata appears...