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Seltzer v. Isaacson

Decided: February 18, 1977.

BARBARA K. SELTZER, PLAINTIFF-APPELLANT,
v.
ROBERT JEROME ISAACSON, DEFENDANT-RESPONDENT



Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

Plaintiff sued defendant Robert Jerome Isaacson, a dentist, to recover compensatory and punitive damages for an assault and battery which he allegedly committed upon her on October 9, 1973 while she was engaged in the performance of her duties as a dental assistant in his office. Defendant moved for summary judgment on the ground that since plaintiff had previously filed a worker's compensation petition naming him as respondent, and had recovered an award for temporary and permanent partial disability for the injuries allegedly sustained during the incident in question, she had made an election of remedies and was barred from proceeding with this action. The trial judge granted the motion and plaintiff appealed the resultant judgment.

Preliminarily, we dispose of defendant's contention, which has merit, that the appeal is out of time, having been filed more than 45 days after the entry of the summary judgment. Although plaintiff moved unsuccessfully in the interim for "an Order granting reargument" and to permit the filing of a second amended complaint, and also to vacate the judgment, such motion does not toll the running of the time for taking an appeal. R. 2:4-3(e); cf. Camden Lime Co. v. Borek , 63 N.J. Super. 174, 181 (App. Div. 1960). Moreover, defendant filed a counterclaim against plaintiff which apparently remains undisposed. It would seem that the judgment appealed from may therefore be interlocutory. Nevertheless, it is a fact that the appeal was out of time by only nine days, so that an extension could have been granted by us upon timely application therefor under R. 2:4-4. Additionally, since the issues have been fully briefed, we perceive no sound reason for delaying their resolution even

though the appeal may be premature. We shall, therefore, deal with the appeal on its merits.

Plaintiff contends that the granting of defendant's motion for summary judgment constituted reversible error. Her theory appears to be bottomed on the fact, not disputed, that Dr. Isaacson is and at the time of the alleged incident was engaged in the practice of dentistry as a professional association under N.J.S.A. 14A:17-1 et seq. She advances the argument that although the compensation proceedings were brought against Robert Jerome Isaacson, without any corporate designation, the compensation insurance policy was in the name of the professional association and the judgment was actually obtained against it as the real party in interest and not the individual. She contends that a "serious material issue of fact" was raised, namely, that "the Workmen's Compensation Judgment included a misnomer which plaintiff was attempting to correct." She argues, further, that the issue of an intentional tort was never raised in the compensation proceedings and should not be barred now by the doctrine of res judicata. Finally, she maintains that the case fits "within the specific confines of N.J.S.A. 34:15-8 and is distinguishable from cases where the injury is based on the negligence of the employer"; that although she recovered a judgment against the corporate entity, she did not surrender her right against the "precipitator of the intentional wrong," who may not claim any bar to an action resulting from his assault. We find no merit whatever in any of these contentions.

We recognize the thoroughly settled principles of law that summary judgments are to be granted with extreme caution, Ruvolo v. American Gas. Co. , 39 N.J. 490, 499 (1963), and that on a motion for summary judgment, it is the movant's burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact and all inference of doubt are drawn against the movant in favor of the opponent. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74 (1954). Only when it is palpably disclosed

that there is no genuine issue of fact and the movant is entitled to a judgment as a matter of law should such motion be granted. United Advertising Corp. v. Metuchen , 35 N.J. 193, 196 (1961). But our review of the record here completely satisfies us that no genuine issue of fact existed and that the trial judge correctly granted the motion for summary judgment.

The purpose of the Workers' Compensation Act, with respect to the employer-employee relationship, was to substitute for common law redress in personal injury tort cases or for the statutory wrongful death action a method of compensation for the injury or death of an employee, irrespective of the fault of the employer or the contributory negligence and assumption of risk of the employee. United States Cas. Co. v. Hercules Powder Co. , 4 N.J. 157, 163 (1950). The employer gives up common law defenses to negligence suits and assumes an absolute liability to provide compensation; in return, he is granted immunity from common law negligence suits by his employees. Wilson v. Faull , 27 N.J. 105, 116 (1958).

Plaintiff asserts, however, that the alleged assault and battery upon her constituted an intentional wrong which entitled her to pursue her common law remedy irrespective of the statute. It is true, of course, that where an injury or the circumstances of its occurrence do not come within the statute, a common law suit for damages is not barred by it. Imre v. Riegel Paper Corp. , 43 N.J. Super. 289, 294 (App. Div. 1957), rev'd on other grounds 24 N.J. 438 (1957). Moreover, the statute itself contains exceptions which allow the pursuit of relief aliunde the statute, such as in certain cases involving the employment of minors. N.J.S.A. 34:15-10, or in the case of intentional wrongs committed by persons in the same employ.

Although plaintiff relies for her cause of action upon an alleged intentional wrong, it is not clear whether her theory is that the tort was committed by her employer, the professional ...


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