[177 NJSuper Page 568] This is a motion by Insurance Company of North America (INA) for summary judgment dismissing a third-party complaint brought be two volunteer fire companies of Beverly, New Jersey, seeking coverage and legal defense of a tort claim
against the two companies. Although such is the procedural context of the motion, there does not appear on this motion, at least, any issue relating to actual coverage under INA's policy; rather, INA asserts the two companies did not have notice of the tort claim against them under the New Jersey Tort Claim Act (hereinafter "act") and it is contended the tort action itself is that which ought to be dismissed. The fire companies, independently represented before the court, join INA's motion insofar as it asks dismissal of the tort action against them without prejudice to their right to demand coverage and defense in the tort action should the motion be denied.*fn1 Counsel for the New Jersey State Association of Fire Districts was also permitted to file a brief amicus curiae and argue on behalf of the fire companies. Implicated in the matter are the issues of whether these volunteer fire companies are public entities under the Tort Claims Act, N.J.S.A. 59:1-1 et seq. , the validity of notice to them under the act and whether the companies are immune under N.J.S.A. 2A:53A-13.1.
The facts around which this controversy boils, undisputed for the purposes of this motion, are as follows: Plaintiff Mark D'Eustachio is a property owner of the City of Beverly. On Sunday, October 16, 1977, defendants Beverly Fire Company No.
1 (hereinafter No. 1), Hope Hose Fire Company No. 2 (hereinafter No. 2), Willingboro Fire Company, Delanco Fire Company and Beverly Road Fire Company*fn2 gathered at or near D'Eustachio's property to conduct a fire drill under the leadership and control of Buck McNinney, the chief of No. 1 and No. 2. What happened next was none too dispassionately described in a letter D'Eustachio wrote to McNinney four days after the incident:
Extensive damages were incurred by me as the result of your recent fire drill. My fields were already soggy from recent rains, but were completely flooded when thousands of gallons of water were pumped at full force onto my property on Broad Street in Edgewater Park, to which you can attest.
You will recall I contacted you at the time of the drill expressing concern for my thoroughbreds, the several mares which were in foal, and the young foals also, and requested an immediate stoppage of the drill.
As a result of all the commotion and noise involved in this drill (radios, loud speakers, water sprays, motors and mass confusion) several horses were injured by running rampant and going through fences.
In addition, a young foal out of an expensive mare which had produced numerous winners was lost. I had to have a veterinarian in attendance for the injured thoroughbreds, but he was unable to save the foal because of injuries suffered.
Much later, when No. 1 and No. 2 had defaulted in this action, plaintiff, on oral proofs, established over $16,000 in damages for losses sustained.*fn3
On January 16, 1978 plaintiff's counsel wrote a detailed letter to the City of Beverly complying with N.J.S.A. 59:8-4 in form and content. When no satisfaction was forthcoming, this action, which originally named only the City of Beverly and No. 1 and No. 2 as defendants, was filed on July 18, 1978. Later the city joined the other three companies.
Both No. 1 and No. 2 are physically situate in Beverly and regularly provide firefighting services ...