Muccifori, J.c.c. (temporarily assigned).
Plaintiff Boehm was in the employ of Ernest E. Benton on September 15, 1965, on which date he sustained personal injury as a result of an accident arising out of and in the course of his employment. At that time Benton was a subcontractor and Joseph A. Meli was the general contractor, and defendant Witte was the owner of property being renovated. Because of the fact that Benton did not have workmen's compensation insurance, Meli, as the general contractor and under the provisions of the New Jersey Workmen's Compensation Act, became obligated to make payment on the compensation award obtained by Boehm pursuant to N.J.S.A. 34:15-79. The Workmen's Compensation Division entered judgment against Meli and in favor of Boehm on October 14, 1966.
Boehm now brings suit against defendants Witte and Meli alleging negligence, and the issue, therefore, is whether an employee of an uninsured subcontractor who has received a compensation award from a general contractor pursuant to N.J.S.A. 34:15-79 may now maintain a third-party action against such general contractor. A thorough research of New Jersey case law reveals that our courts have not ruled on that issue.
It is plaintiff's contention that the fact that a general contractor becomes liable for workmen's compensation due to a subcontractor's failure to carry compensation insurance does not preclude the injured employee from maintaining a common law third-party negligence action against the general contractor.
Defendant contends that the factual situation here is controlled by Wilson v. Faull, 27 N.J. 105 (1958). Although
the court in that case was dealing specifically with the Pennsylvania Compensation Act, it made continuous reference to New Jersey's. From this defendant argues that our Supreme Court indicated that it would under the same set of facts presented therein hold that our Compensation Act would bar such a third-party claim. It is a well settled law in this State that an employee of an insured subcontractor, in addition to his compensation claim against the subcontractor, may maintain a third-party action against the general contractor. Corbett v. Starrett, 105 N.J.L. 228 (E. & A. 1928).
N.J.S.A. 34:15 et seq. has long provided relief for an employee injured on the job. By providing compensation insurance the employer gained immunity from a common law negligence action by the injured employees, and the employee gained assured compensation for injuries regardless of his own negligence.
The Legislature in N.J.S.A. 34:15-79 fixed penalties for the failure to provide the protection prescribed in the Compensation Act. An offender could receive a fine of $1,000 and a jail sentence.
N.J.S.A. 34:15-79 further provided that
"Any contractor placing work with a subcontractor shall, in the event of the subcontractor's failing to carry workmen's compensation insurance as required by this article, become liable for any compensation which may be due an employee * * * of a subcontractor. The contractor shall then have a right of action against the subcontractor for reimbursement." (Emphasis supplied)
This gives a general contractor a statutory remedy against his noncomplying subcontractor. However, the Pennsylvania act, unlike the New Jersey act, provides that the general contractor is primarily liable and the subcontractor secondarily liable for compensation; it also specifically immunizes the general contractor from third-party claims in such cases.
Interpretation of the quoted provision from our act was the basis of a decision in Corbett ...