In this action there are consolidated three separate suits commenced against Rutgers, The State University (Rutgers). The captions of the actions and the respective dates of commencement are:
Edwin J. Dobson, Jr. Inc. v. Rutgers -- 8/4/71 (hereinafter Dobson)
Frank Briscoe Co., Inc. v. Rutgers -- 12/8/72 (Briscoe)
Broadway Maintenance Corp. v. Rutgers -- 5/31/73 (Broadway)
Each action is based on one of six prime contracts dated October 31, 1966 for the construction of the Rutgers Medical School. Dobson had the plumbing and fire prevention contract for $998,413. Briscoe had the contract for general construction for $7,392,000. Broadway had the electrical contract for $2,508,650. Each of said contracts specified the work was to be done in 700 days of 23 months. The project took 48 months. The project was completed in 1970 instead of 1968.
When the Dobson suit was instituted the private firm of attorneys representing Rutgers filed the answer, and no defense of sovereign immunity was asserted. At the present time the Attorney General of the State of New Jersey has assumed the defense of that action and filed the answers in the other two actions and asserted that said actions were subject to the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq.
By L. 1970, c. 102, N.J.S.A. 18A:64G-1, The Medical and Dental Education Act of 1970, the Legislature and Governor determined to combine all medical and dental colleges
receiving state support into one corporate entity. N.J.S.A. 18A:64G-3 and 30 provide for the transfer of Rutgers Medical School to the newly created College of Medicine and Dentistry of New Jersey (CMDNJ). Pursuant to an agreement entered into in June 1972 CMDNJ assumed all the rights, obligations and duties of Rutgers under the aforesaid contracts and agreed to indemnify Rutgers. It is the court's understanding that pursuant thereto the Attorney General then undertook the defense of the then pending Dobson claim and the defense of the later actions.
In the period between the commencement of the Dobson action and the later actions, the contractor and the State participated in settlement proceedings before a panel. There was an informal agreement that no other action would be commenced. No agreement was reached.
At the time the case was assigned to this court there were pending a number of motions, including a motion for partial summary judgment by the Attorney General to strike certain claims. Those pertaining to discovery have been disposed of and discovery is now complete. A pretrial is scheduled to be held in a few days. The pending motions have been amplified by the Attorney General and all parties have briefed and argued the motions. In order to properly prepare for a pretrial, the parties have requested the court rule now on as many of the motions as possible.
The court has set forth on the record the disposition of all motions except that based on the contention of the Attorney General that this action is controlled by N.J.S.A. 59:13-1 (New Jersey Contractual Liability Act), L. 1972, c. 45, in that under the laws of 1956 providing for the reorganization of Rutgers, N.J.S.A. 18A:65-1 et seq. (L. 1956, c. 61), Rutgers was initially not subject to suit on these contracts and is now subject to suit only under the New Jersey Contractual Liability Act.
The Attorney General bases this argument on the ground that the Rutgers, the State University Law, L. 1956, c. 61, N.J.S.A. 18A:65-1 et seq., does not authorize the board of
governors to sue or be sued. See N.J.S.A. 18A:65-25. He refers to the Report of the Attorney's Task Force on Sovereign Immunity dated May 1972 (Report), at 32, to show that N.J.S.A. 18A:65-1 et seq. is not one of the statutes included among the list of statutes which authorized a state agency "to sue or be sued". The expression "to sue and be sued" inserted in a statute creating an agency has been construed as a waiver of sovereign immunity. Report, at 32.
The Attorney General also urges that the Contractual Liability Act must be construed with the other provisions of Article 59, "Claims Against Public Entities," including the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., L. 1972, c. 45. The comments to said law enacted by the Legislature state,
The Attorney General further argues that under the decisions in Trustees of Rutgers College in New Jersey v. Richman, 41 N.J. Super. 259 (Ch. Div. 1956); Rutgers, The State University v. Kugler, 110 N.J. Super. 424 (Law Div. 1970), aff'd p.c. 58 N.J. 113 (1971), and Rutgers v. Piluso, 60 N.J. 142 (1972), the courts have repeatedly held that Rutgers is an "instrumentality of the State," "a state agency", and other similar expressions.
The Attorney General therefore concludes that since the board of governors was given no power "to sue or be sued," N.J.S.A. 18A:65-25, there is none and, consequently, since 1956 Rutgers has had available to it the defense of sovereign immunity; hence Rutgers meets the express criteria for the application of N.J.S.A. 59:13-2 which provides:
State shall mean the State and any office, department, division, bureau, board, commission or agency of the State, but shall not include any such entity which is statutorily authorized to sue and be sued. * * *
The Attorney General further concludes that since the contracts which form the subject matter of this litigation were entered into in 1966, they are subject to that defense except, and to the extent, that the Legislature in N.J.S.A. 59:13-1 et seq. has provided otherwise. Said statute therefore broadens and does not take ...