Wausau Ins. Companies v. Fuentes
| Decision Date | 13 June 1986 |
| Citation | 522 A.2d 440,215 N.J.Super. 476 |
| Parties | WAUSAU INSURANCE COMPANIES, a corporation, Plaintiff-Respondent, v. Eulalia Adames FUENTES, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Carol Loughrey, Newark, for defendant-appellant (Blume, Vazquez, Goldfaden, Berkowitz, Oliveras & Donnelly, attorneys).
Robert Silver, Woodbridge, for plaintiff-respondent (Michals, Wahl, Silver & Leitner, attorneys; Robert Silver on the brief).
Before Judges ANTELL, SHEBELL and MUIR.
The opinion of the court was delivered by
ANTELL, P.J.A.D.
Defendant suffered a job-related accidental injury and received workers' compensation benefits from plaintiff. Her attorney neglected to bring a third party product liability action within the period of limitations against the manufacturer of the machine on which defendant was working at the time of the accident and she thereafter filed a legal malpractice action against him which resulted in a settlement recovery of $115,000 and $670 a month for the rest of defendant's life. This appeal is from a declaratory judgment in the Law Division recognizing plaintiff compensation carrier's lien upon that recovery for compensation payments made.
Plaintiff's right to a lien derives from N.J.S.A. 34:15-40. That statute deals with the situation presented where "a third person is liable to the employee or his dependents for an injury or death...." (Emphasis ours). N.J.S.A. 34:15-40(a) obliges the employer or his insurance carrier to make compensation payments until the payment "by such person or his insurance carrier is made" by the third party. N.J.S.A. 34:15-40(b), upon which plaintiff depends, specifically recites the following:
If the sum recovered by the employee or his dependents from the third person or his insurance carrier is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents less employee's expenses of suit and attorney's fee as hereinafter defined. [Emphasis ours].
Applying the rule that statutes in derogation of common-law must be strictly construed, Foy v. Dayko, 82 N.J.Super. 8, 12, 196 A.2d 535 (App.Div.1964), we hold that plaintiff's right of recovery goes no further than to payments actually...
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