This case has come before the court on cross motions by both plaintiff and defendant for summary judgment on two issues. The issues involved are whether defendant's insurance company is liable to the plaintiff under the two forms of coverage that were contained in defendant's policy, viz., medical payment coverage and liability coverage. The action arose from an automobile accident.
Defendant contends both she and plaintiff are co-employees. Plaintiff says that while this may be so in the theological sense, it is certainly not so within the provisions of Title 34 of the New Jersey Statutes Annotated. Both the plaintiff and defendant are nuns within religious organizations set up under the hierarchy of the Catholic Church. The defendant, Sister Agnes Reinkemeyer, is employed as a member of the faculty of Seton Hall University. The plaintiff, Sister Rose Thering, is a member of the Sisters
of Saint Domenic of Racine, Wisconsin. Plaintiff had been working in the area of Catholic-Jewish relations in the Chicago area prior to coming to Seton Hall. While still in Chicago, the plaintiff was interviewed by a Monsignor Oesterreicher who is the Director of the Institute of Judeo-Christian Studies which is located at Seton Hall. Subsequently, plaintiff was offered a contract to come to Seton Hall to act as the Academic Coordinator of the Institute of Judeo-Christian Studies for the academic year commencing in September 1968 and ending in June 1969. The offer was accepted by plaintiff who arrived at Seton Hall in August of 1968 in order to assume the position. Prior to her arrival arrangements had been made for her to reside in a house owned and furnished by the University at 107 Woodbine Avenue which is located close to the campus. Plaintiff was not under any requirement to live there and was free to reside wherever she pleased but chose to accept this location because of its convenience. The understanding was that the University was to receive a rental of $200 per month of which plaintiff paid one-third since there were two other nuns living there, one of whom was the defendant.
After the plaintiff had been residing at the home for approximately one month, she and the defendant, Sister Reinkemeyer, found that they did not care for certain bedspreads that had been furnished to them by the University as part of the consideration for the rent, and they decided to exchange them at the store where they had been purchased. It was on the trip to the store for this purpose and also to possibly do some shopping that the accident occurred. The two sisters were on their way to the store in the defendant's car with the defendant driving when suddenly the defendant lost control of the car and it swerved into a utility pole causing the plaintiff to be severely injured. At the time of this accident the defendant had an insurance policy issued by State Farm Mutual Automobile Insurance Company and said policy included both liability coverage and medical payment coverage.
Through their respective motions, both parties have asked for summary judgment both as to the medical payment and as to liability. Plaintiff's contention is that she is a third party beneficiary of the insurance contract as to the medical payment and that as to the liability coverage, there is a presumption of negligence under the doctrine of res ipsa loquitur when a car leaves the road, which according to the contention of plaintiff should prevail since defendant has not introduced any references to any other intervening causes. On the other hand, the insurance company, through the defendant, relies on the contention that plaintiff is not entitled to either medical payment or liability because she is allegedly a co-employee of defendant and, therefore, barred by N.J.S.A. 34:15-8.
In determining whether or not plaintiff is entitled to the medical payment coverage it is necessary to examine both N.J.S.A. 34:15-8 and 17:28-1. The first of these two statutes reads in part:
If an injury or death is compensable under this article [Workmen's Compensation], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
The second of the two statutes reads in part:
Any policy of liability insurance * * * may contain a provision for payment on behalf of the injured party or for reimbursement of the assured for payment of medical, hospital, surgical and funeral expenses incurred, as a result of an accident, irrespective of legal liability of the assured * * *.
Therefore, while it might appear from the first of these statutes that plaintiff would be barred from holding defendant liable, it can now be seen that the later statute authorizes the payment of medical expenses regardless of the assured's position of liability. This being the case ...