On Appeal from Superior Court, Law Division, Cape May County.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by Dwyer, J.A.D.
Borough of Wildwood Crest, a municipal corporation organized under the laws of the State of New Jersey and Ben Roy employed as dog warden by the borough appeal from the denial of summary judgment as to all but the fifth count of plaintiff's six-count complaint. The first three counts alleged negligence and other grounds for liability of the borough and Roy. The fourth count incorporated the first three and sought contribution. The fifth count sought indemnification. Since plaintiffs were liable under N.J.S.A. 4:19-16, the trial judge granted defendants' motion on this count. The sixth count repeated the first five and sought to hold defendants jointly liable.
The third-party defendants did not make any motions which are involved on this appeal.
The facts related to jurisdiction and procedural matters are not disputed. The facts related to liability are disputed but there is no need to resolve the factual disputes to determine the narrow question posed by this appeal. The question is: Does the ban in N.J.S.A. 59:9-2(e) prohibiting an insurer from bringing suit against a public entity or public employee under a subrogation provision in an insurance contract bar an insurer which has settled the claim of a third party from bringing an action for contribution under N.J.S.A. 59:9-3 on its claim that the public entity and/or public employee is a joint tortfeasor with its named insured?
Plaintiffs own a summer home in the borough. They reside in Delaware County, Pennsylvania. They own a German Shepherd named Martin. On August 10, 1974 plaintiffs were at their home in the borough with their dog.
Under circumstances which are disputed, Roy was near or on plaintiffs' property in the borough and allegedly used a chemical dog repellant to repress Martin.
Later that day Anita Ferguson, an infant, visited plaintiffs' home. Martin attacked her and bit her face.
Anita Ferguson, by her guardian and her parents, who are residents of Pennsylvania, instituted suit against plaintiffs herein in the courts of Delaware County, Pennsylvania. At oral argument counsel for plaintiffs represented that before the Pennsylvania action was settled, this suit was commenced. The insurance carrier for plaintiffs' homeowners' policy settled the Pennsylvania action by paying its policy limit of $50,000. The settlement was approved by the Pennsylvania court after a hearing but without any finding of fault.
The borough's counsel asserts that this action must be considered realistically as a suit by plaintiffs' insurance carrier and as one under the subrogation clause of its policy since it will keep whatever recovery there is in this matter, and therefore the provisions of N.J.S.A. 59:9-2(e) bar this action. The statute reads:
If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee.
This statute has been construed to bar an action where an insurance company has paid its named insured the amount of a loss and then sought to recover that entire amount from a public entity. S.E.W. Friel Co. v. New Jersey Turnpike Auth. , 73 N.J. 107, 113 (1977). There the insurance carrier for the named plaintiff sought to assert a claim for the amount it paid to the insured for ...