This is an action for a declaratory judgment. Plaintiffs move for summary judgment in their favor and defendant Board of Education, Townships of Maplewood and South Orange, moves for summary judgment in its favor. The other defendants have filed no brief, but defendant Maplewood School Transportation Co. joins in plaintiffs' contentions.
The case arises as follows. On May 2, 1966 the infant plaintiff Kenneth Hartmann, then 15 years of age and a resident of Maplewood, was a pupil in the school system operated by the defendant Board of Education of South Orange and Maplewood (hereinafter "board of education"). By arrangement between the defendant board of education and the Summit Board of Education plaintiff and other pupils attended special classes for slow learners at the Summit Junior High School. Defendant Maplewood School Transportation Co. (hereinafter "bus company") transported the children under a contract with defendant board. On the day in question a bus carrying plaintiff and other pupils and operated by defendant Vail, an employee of the bus company, left the roadway on Broad Street in Summit and struck a tree. The infant plaintiff was hopelessly crippled for life.
Plaintiffs instituted an action in this court for damages for the injuries and per quod damages against the same parties who are defendants in this action. The negligence action is still pending awaiting trial. The bus company is insured against liability to the limits of $100,000 for each person injured and $300,000 for each accident. The insurer has offered the full amount of its policy coverage, i.e.
$100,000, to plaintiffs in settlement. The board of education has indicated no interest in contributing toward settlement.
Plaintiffs and their attorneys believe that the damages far exceed $100,000. They believe that neither the bus company nor Vail has assets sufficient to respond to a substantial judgment in excess of the policy amount. They seek to persuade the board of education to contribute to settlement. The purpose of this action is to establish that the board of education is legally liable under N.J.S. 18 A:16-6 to indemnify Vail for any sum recovered against him by plaintiffs. Plaintiffs reason that if they recover a judgment against Vail in excess of insurance coverage, and if it is uncollectible against Vail and the bus company, they may reach Vail's cause of action for indemnification and compel payment by the board of education. They argue that if the right of Vail to indemnity is established now, the board of education will be persuaded to contribute to the settlement of the negligence action.
I have grave doubt about the appropriateness of the declaratory judgment procedure. However, in view of the decision in LeFelt v. Nasarow, 71 N.J. Super. 538 (Law Div. 1962), affirmed o.b. 76 N.J. Super. 576 (App. Div. 1962), certification denied LeFelt v. Aetna Ins. Co., 39 N.J. 86 (1963), I shall deal with the merits.
N.J.S. 18 A:39-2 empowers each board of education to provide transportation for pupils by a bus or buses owned by it or, in the alternative, to enter into contracts for such transportation. N.J.S. 18 A:39-6 requires that liability insurance covering every bus transporting pupils and the drivers thereof to limits prescribed by the State Board of Education be provided by the local board as to its buses, or by the contractor as to buses operated under contract. Defendant board chose to contract for the transportation. The bus company provided the required liability coverage. Vail was an employee of the bus company.
The statute relied upon by plaintiffs is N.J.S. 18 A:16-6, which reads as follows:
" Indemnity of officers and employees against civil action.
Whenever any civil action has been or shall be brought against any person holding any office, position or employment under the jurisdiction of any board of education, including any student teacher, for any act or omission arising out of and in the course of the performance of the duties as such office, position, employment or student teaching, the board shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save harmless and protect such person from any financial ...