On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.
[169 NJSuper Page 413] In this appeal by defendant from a summary judgment in an action wherein plaintiff insurance
company sought and obtained a judgment for reimbursement for medical expenses and temporary disability compensation paid defendant pursuant to the law of workers' compensation, there is no dispute regarding the facts.
Gennaro Collella, an employee of the North American Phillips Company which was insured by plaintiff for workers' compensation liability, was injured in an automobile collision between his vehicle and a Willingboro Township police car. He collected workers' compensation benefits for medical expenses and temporary compensation in the amount of $5,202.45 paid by plaintiff.
Collella instituted an action against the Township of Willingboro and the police officer operating the vehicle at the time of the accident. The matter went to trial and a jury awarded Collella $30,698.37 in damages.
Subsequently plaintiff filed the complaint here implicated seeking reimbursement from defendant to the extent of the $5,202.45 it paid in workers' compensation benefits.
Plaintiff's motion for summary judgment was granted and defendant was ordered to reimburse plaintiff from the jury award. We believe this to be in error and we reverse.
Plaintiff argues that N.J.S.A. 34:15-40(b) is clear in its provision for reimbursement, the sole contingency being that "the sum recovered by the employee * * * is equivalent to or greater than the liability of the employer or his insurance carrier." This contingency was, in fact satisfied in this case. Defendant contends, on the other hand, that since the responsible tortfeasors were a public entity and a public employee, N.J.S.A. 59:9-2(e) precluded his recovery in the common law suit of any benefits to which he was entitled by virtue of the policy of workers' compensation insurance, and insulated defendants in that suit from responsibility for paying those. Plaintiff's response to this defense is that N.J.S.A. 59:1-5 renders N.J.S.A. 59:9-2(e) inoperative to the extent it conflicts with N.J.S.A. 34:15-40(b).
The question is one of first impression involving statutes which apparently are in conflict. In such a situation our
effort is to divine as best we can the intent of the Legislature so that in the event they cannot be harmonized, we may declare which shall prevail. See Maritime Petroleum Corp. v. Jersey City , 1 N.J. 287 (1949).
Nobody doubts that were the tortfeasor one other than a public entity or public employee, the insurance company would unquestionably be entitled to reimbursement under N.J.S.A. 34:15-40(b) and, as a matter of fact, to subrogation, on a conditional basis, to the right of the injured employee to seek damages on account of that for which the insurance company paid the employee, N.J.S.A. 34:15-40(f). But to permit those rights to extend to actions involving payment by a public agency (or its insurer; see Cucci v. Jaldini , 141 N.J. Super. 297 (App. Div. 1976)) would be to confer upon the commercial insurance company rights beyond those the Legislature gave the injured worker. For the worker, being entitled by law to receive benefits from workers' compensation insurance, cannot retain ...