Pressler, J.c.c. (temporarily assigned).
This automobile negligence action, by reason of the third-party complaint filed by defendant Carl Skog against the New Jersey Department of Transportation (hereinafter "State"), raises an important question of construction of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., which has not heretofore been dealt with by any reported decision of our courts. That question, posed by the motion of the State for dismissal of the third-party complaint, is whether the viability of the right of a nonpublic defendant to seek contribution from a public entity as a joint tortfeasor is dependent upon plaintiff having complied with the claim presentation requirements of N.J.S.A. 59:8-8. For the reasons hereinafter set forth, the court has determined that it is not.
The essential facts involved in this litigation, insofar as they are implicated in the motion to dismiss the third-party complaint, are undisputed and may briefly be stated. Plaintiffs Marie Markey and William F. Markey (hereinafter "Markey"), were, on October 28, 1972 passengers in Skog's automobile which he was then driving on Route 23 south-bound in Riverdale, New Jersey. They claim to have been injured when Skog's automobile collided with a traffic island curbing in the roadway. They filed their complaint against Skog in October 1972, alleging negligence on his part in his operation of his vehicle. Skog was served on October 30, 1972 and filed and served his answer in due course. On August 15, 1973 Skog filed a notice of motion, served only upon plaintiffs in accordance with R. 4:8-1, seeking leave to file and serve a third-party complaint against the State. An order granting such leave was entered on September 19, 1973 and within the ensuing week the third-party complaint was filed and served, seeking contribution from the State as a joint tortfeasor on the theory, as it thereafter
appeared, that the State's negligence in its design and maintenance of the roadway in question was a substantial contributing cause of the accident.*fn1
It is conceded that plaintiffs have never made a direct claim against the State in respect of this accident on this or any other theory; that they have not, since the filing of the third-party complaint, sought leave to amend their complaint to seek direct relief from the State, and finally, that they have not, despite the State's notice to them of the pending motion to dismiss, participated in these proceedings at all. It is further conceded that the State's first notice of plaintiffs' accident and of the defendant's contribution claim was the third-party complaint served upon it some 11 months after the event.
The State's answer to the third-party complaint denies negligence and alleges, by way of affirmative defense, that its sovereign immunity bars the contribution claim, and it is essentially the sovereign immunity defense which is being urged in support of its pending motion. The State's basic contention is that the New Jersey Tort Claims Act, effective July 1, 1972, does not constitute an abrogation of the doctrine of sovereign immunity but rather is a limitation on the application of that doctrine pursuant to which the State has agreed, in effect, to recognize and permit the adjudication against it only of certain tort claims of a defined substantive
nature and provided, further, that such claims are processed, presented and proceeded upon in accordance with the strict procedural requirements of the act. Hence, it argues, if a plaintiff fails to perfect his claim against the State by having failed to comply with the procedural requirements of the act, the State is not only not liable to the plaintiff but is also relieved of liability in respect of all consequences of its alleged negligence, including liability to a joint tortfeasor for contribution.
The State seeks to support this conclusion by a literal construction of the act, relying first on N.J.S.A. 59:8-3, which provides that "No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." The State then points to N.J.S.A. 59:8-8, which provides that "A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action." That section further provides that "the claimant shall be forever barred from recovering against a public entity if" he has failed to file his claim with it within 90 days after its accrual unless, pursuant to N.J.S.A. 59:8-9, he has obtained leave from the Superior Court extending the filing time for one year following the accrual of the claim. The State urges that the word "claim," as used in both N.J.S.A. 59:8-3 and 59:8-8, must be construed to mean the primary claim of the person who has sustained the death, personal injury or property damage resulting from the public entity's alleged negligence. Thus, it reasons, if the primary claim is barred by the primary claimant's inaction during the 90-day period, the State is no longer liable to the primary claimant and, therefore, cannot be liable to any derivative claimant, including a joint tortfeasor. The logical consequence of this position, which it asserts by way of a supplemental brief, is that a private joint tortfeasor seeking contribution does not have any procedural device available
to him to cure a plaintiff's failure to have pursued the statutory remedy against the public entity, and thus cannot preserve his right to contribution against the State even if he were himself to put the public body on notice within the 90-day period. The State insists, therefore, that a private joint tortfeasor's right to contribution from it is exclusively dependent on the plaintiff's unilateral election to seek recovery from the State in accordance with the act.
It is the court's conclusion that the State's argument misconceives not only the history, purpose and construction of the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq., but also the ...