Tremonte v. Jersey Plastic Molders, Inc.

• Decision Date: 03 August 1983
• Citation: 190 N.J.Super. 597,464 A.2d 1193
• Parties: Mary TREMONTE, Petitioner-Respondent, v. JERSEY PLASTIC MOLDERS, INC., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 597

190 N.J.Super. 597

464 A.2d 1193

Mary TREMONTE, Petitioner-Respondent, v. JERSEY PLASTIC MOLDERS, INC., Respondent-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued June 14, 1983.

Decided Aug. 3, 1983.

George J. Kenny, Newark, for respondent-appellant (Connell, Foley & Geiser, attorneys, Newark, George J. Kenny, Newark, of counsel; Patrick J. McAuley, Newark, on the brief).

Charles J. Lambusta, Newark, for petitioner-respondent.

Before Judges FRITZ, JOELSON and PETRELLA.

The opinion of the court was delivered by

FRITZ, P.J.A.D.

This is an appeal by the employer from an adverse judgment entered in the Division of Workers' Compensation. We affirm in part and reverse in part.

Although the compensability of the accident is contested, the fact of its occurrence is not. Nor is the manner of the happening the subject of any evidence contradicting petitioner's version. She testified that she had reached the building of her employer on her way to work in the early morning dark. As she walked on the sidewalk adjacent to the building and between it and the street, she hurried to get to the building door because, having been "already mugged about three times on that same street," she was apprehensive about "two colored guys coming down that way [who] were looking at me laughing." She fell on the projection of a raised slab of sidewalk and was injured. The testimony is uncontroverted that the sidewalk "comes to a dead end," obviously at the far end of the employer's building. The inference is inescapable that for all practical purposes this sidewalk is used only with relation to the employer's business.

We pause here to dispose of the employer's argument that the so-called "going and coming" rule precludes compensability. The judge of compensation believed this aspect of the litigation was controlled by DiNardo v. Newark Bd. of Ed., 118 N.J.Super. 536, 289 A.2d 259 (App.Div.1972) and so do we. This issue is without merit. R. 2:11-3(e)(1)(D), (E).

Counsel for petitioner, ostensibly motivated by his discovery "that respondent insurance company in this case would not pay the case on a compensation basis and what the position was of Jersey Plastic Molders," filed both a compensation action and a common law negligence action. The latter action, it appears, also included as a defendant, "an architectural construction firm which allegedly built the structure and the sidewalk where the petitioner fell." When, on the day of trial, "the architectural construction company was let out of the case on a motion for summary judgment, because of the ten year statute," the employer (or its liability insurance carrier) settled the common law suit by a voluntary payment. The workers' compensation petition was tried to a conclusion and a judgment was entered for petitioner.

The employer insists that petitioner's "recovery from Jersey Plastic by way of settlement of a Superior Court action bars her from proceeding in worker's compensation." It expressly eschews any contention that "an injured employee may not file a complaint in Superior Court and also a claim in Worker's Compensation Court [sic ] in order to preserve the potential avenues of recovery when there is reason to doubt, as there was herein, whether an action is compensable under Worker's Compensation." But, relying on the 4-2 decision reversing both the compensation board and the Appellate Division in Martin v. C.A. Productions Company, 8 N.Y.2d 226, 168 N.E.2d 666, 203 N.Y.S.2d 845 (Ct.App.1960), it insists that the prior settlement of the common law action should be a bar to the compensation claim. We disagree.

We do not at all doubt the proposition, derived from the statute, that the compensation remedy is exclusive. N.J.S.A. 34:15-8. Nor do we doubt that in the compensable accident situation, as we believe this to have been, the employer is simply not liable at common law. But this right to have the common law action dismissed on that ground is not one that cannot be waived. No public policy exists opposing the settlement of civil actions. In fact, the settlement of litigation ranks high in our public policy. State v. Gibson, 68 N.J. 499, 511, 348 A.2d 769 (1975); Jannarone v. W.T. Co., 65 N.J.Super. 472, 476, 168 A.2d 72 (App.Div.1961), certif. den. sub nom. Jannarone v. Calamoneri, 35 N.J. 61, 171 A.2d 147 (1961). The employer did not undertake to assert that right. Rather, it chose to buy its way out of that litigation and thereby waived its right to defend. In a word, it volunteered a payment which it did not need to make. "Waiver is the voluntary relinquishment of a known right evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based." Mitchell v. Alfred Hoffman, Inc., 48 N.J.Super. 396, 405, 137 A.2d 569 (App.Div.1958), certif. den. 26 N.J. 303, 139 A.2d 589 (1958). A clearer case of waiver would be hard to contrive. ¹

It would be unrealistic not to acknowledge that this settlement was undoubtedly the doing of the employer's liability insurance carrier, a different entity from the workers' compensation carrier. But we cannot let this fact distract us from the predominant fact that the employment contract, and the exclusive remedy provision included therein by operation of law, are between the employer and the employee. That compels us to regard the litigation in both forums and the settlement as between the employer and employee. Otherwise we might well have divergent results in cases where the same carrier was on both risks or where the employer was self-insured for either or both risks. Our approach is not as out of tune with reality as might first appear. Both the liability carrier and the compensation carrier may provide in their policies for such things as notice of the conflicting litigation and unquestionably, with a little imagination, for remedies to accommodate the situation.

As noted, the result we reach does not offend public policy in countenancing the waiver by the employer and permitting it to settle a common law action despite the exclusive workers' compensation remedy. However, to permit the employer to enter into such a settlement with an employee at the risk of jeopardizing the employee's workers' compensation remedy would affront public policy. "The policy of the compensation law is that compensation shall be paid for every compensable experience, and that no employee shall waive what is due him. See Esso Standard Oil Co. v. Holderman, 75 N.J.Super. 455, 467-468 (App.Div.1962), affirmed o.b. 39 N.J. 355 (1963) [, app. dism. 375 U.S. 43, 84 S.Ct. 148, 11 L.Ed.2d 107 (1963) ]." Accident Index Bureau, Inc. v. Hughes, 46 N.J. 160, 164, 215 A.2d 529 (1965). For that reason, we join with the New York Compensation Board, the Appellate Division of the Supreme Court of New York and the dissenters in the case, and we reject the estoppel theory of the majority in Martin v. C.A. Productions Company, supra. ² We believe that our State's public policy and deference to the obvious legislative intent which manifests this policy (see, for example, N.J.S.A. 34:15-39 and -50) warrants our adoption of the position of the dissent in Martin.

We turn finally to the argument of the employer that it should in any event receive credit as against the compensation award for the payment made in settlement of the common law action. The compensation judge denied this on the ground that the only provision for a third party lien is in N.J.S.A. 34:15-40 and inasmuch as this "speaks specifically of a third party liable to the employee" and here "there was no third party involved," no right to a lien by the employee attached. Here we are persuaded by the reasoning of Anderson v. Wachter, 283 Minn. 273, 167 N.W.2d 719 (Sup.Ct.1969) which is squarely on point, including the fact that the Minnesota statutes provide for third-party liens. In that case the Workmen's Compensation Commission was unanimous in a determination giving credit for the settlement. It explained its action thusly:

"The referee in his memorandum indicated that the employer is not a 'third-party' under the terms of M.S.A. 176.061, and therefore the compensation carrier...