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Wager v. Burlington Elevators Inc.

Decided: October 12, 1971.

MARCUS J. WAGER, JR., PLAINTIFF,
v.
BURLINGTON ELEVATORS, INC., A CORPORATION OF NEW YORK, DEFENDANT-THIRD PARTY PLAINTIFF, V. CARL E. KEES AND HAZEL KIRK KEES, INDIVIDUALLY AND TRADING AS WILLIAM C. KIRK, KIRK ELEVATOR CO., INC., AND KIRK DUMBWAITER CO., INC., CORPORATIONS OF NEW JERSEY, THIRD-PARTY DEFENDANTS



Tumulty, J.s.c.

Tumulty

This matter came before the court on two motions which appear to raise a novel issue relative to N.J.S.A. 34:15-50. The first motion was by third-party defendants Carl E. Kees et al. (hereinafter Kees), for an order permitting them to pay into court the sum of $22,500 representing their share of the settlement of this suit. The second motion was by New Jersey Manufacturers Insurance Company, insurer of Wager's employer, Montclair National Bank & Trust Company, for an order directing plaintiff, his attorney, third-party plaintiff Burlington and third-party defendants Kees to honor the workmen's compensation lien held by the New Jersey Manufacturers Insurance Co. We deny third-party defendants' motion to pay into court their share of the settlement suit and grant the motion of New Jersey Manufacturers Insurance Co. to have the workmen's compensation lien honored, for the reasons set forth hereinafter.

Plaintiff was injured on February 23, 1967 while in the course of his employment with the Montclair National Bank & Trust Company when a Burlington elevator dropped,

causing plaintiff to fall with the elevator and sustain personal injuries.

Plaintiff Wager sought workmen's compensation against his employer, Montclair National Bank & Trust Company, by a claim petition filed November 28, 1967. This court's docket reflects that plaintiff thereafter filed the instant civil suit on May 8, 1968. Both the workmen's compensation petition and the present complaint were filed by the same attorney, who currently represents plaintiff.

The compensation matter came on for hearing before the Workmen's Compensation Division on September 2, 1969, and judgment against plaintiff's employer, Montclair National Bank & Trust Company, was formally entered September 22, 1969. Despite the pendency of the civil action, for some 16 months during and prior to the conclusion of the compensation matter, neither plaintiff nor his counsel advised the employer's compensation carrier, New Jersey Manufacturers Insurance Co. (which was making the compensation payments), that plaintiff had such a civil suit in process. No attempt was ever made thereafter by plaintiff or his counsel to so advise the carrier. The carrier continued to pay the compensation due to plaintiff.

On December 9, 1969 the civil action was settled with Kees and Burlington for the total sum of $25,000. Of this figure, the third-party defendants (Kees) were to pay $22,500, and defendant-third party plaintiff (Burlington) was to pay $2,500.

Subsequent to the agreement to settle, but before any payment had been made, counsel for the third-party defendant (Kees), who apparently was aware of the compensation situation, requested closing papers of plaintiff's counsel and, in particular, inquired as to the amount of the compensation lien.

On June 1, 1970 plaintiff's counsel eventually forwarded to third-party defendant Kees general releases and stipulations of dismissal. Since no release of the compensation lien was among these papers, the attorney for the third-party defendant

on June 3, 1970 wrote plaintiff's attorney requesting such a release. Thereafter "several" letters and "a number" of telephone calls failed to produce any such paper.

The third-party defendants (Kees) filed a motion in the nature of an interpleader and gave due notice of same to the compensation carrier, which afterward filed a motion to have its lien ...


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