Civil action. On motion for summary judgment.
Barrett, J.c.c. (temporarily assigned).
This matter is before the court on the motion of New Jersey Manufacturers Casualty Insurance Company for summary judgment as to all claims against it, primarily those of plaintiff who sues as general administratrix and as administratrix ad prosequendum. In the former capacity she seeks to recover for personal injuries suffered by her husband in his lifetime, and in the latter capacity she seeks recovery for his wrongful death on March 12, 1963.
Decedent Frank Mager, on May 12, 1960, was employed by American Window Cleaning Co., which in turn was insured for workmen's compensation by defendant New Jersey Manufacturers (hereinafter referred to as the insurance company). In the course of his employment Mager suffered injuries for which he received temporary and permanent disability from the insurance company.
Pursuant to the instructions of his employer at the time of his injury, he was taken to and treated at an industrial clinic. The clinic was admittedly maintained and operated by the insurance company.
It is alleged that due to the negligence of the insurance company, decedent's leg was first amputated and then he died. Defendant United Hospitals of Newark is also charged with negligence which was a cause or a substantial contributing factor in the same amputation and the ultimate death.
United Hospitals by way of crossclaim seeks contribution and indemnification from the insurance company. As to the claim for contribution under the Joint Tortfeasor's Act, its disposition is dependent upon the validity of the main suit. As to the indemnification claim, there is not set forth in the pleadings any basis, by contract or otherwise, for making the insurance company liable to United Hospitals for all or part of plaintiff's claim. Therefore the claim for contribution will fail if I dispose of this motion adversely to plaintiff.
As regards plaintiff's complaint against the insurance company, the primary question to my mind is whether a workmen's compensation insurance carrier can be liable in tort to the administratrix of a decedent beneficiary of the insurance for the aggravation of his work-connected injury and ultimate death through negligent treatment in a clinic maintained and operated by the company?
There is no dispute about the facts necessary to this decision. Admittedly, New Jersey Manufacturers is the insurer of Mager's employer. Subsequent to the death of Mr. Mager, a workmen's compensation dependency petition was filed on behalf of the widow against the employer, the American Window Cleaning Co., to which the insurance company filed an answer. That petition is still pending.
The weight of authority in the country is against this type of action.
In Raines v. Pennsylvania Thresherman, etc., Ins. Co. , 123 A. 2 d 420 (Pa. Sup. Ct. 1956), there was a similar type of action based upon a carrier's alleged failure to furnish
claimant with competent and adequate medical care. The court said:
"The defendant company's sole liability to the appellant is under its policy of compensation insurance which it issued to the appellant's employer. The insurance company is a party to the pending compensation proceeding, and the appellant will be able therein to claim for his injuries, including the loss of his leg, once the causal ...