On appeal from Superior Court, Law Division, Essex County.
Seidman, Antell and Lane. The opinion of the court was delivered by Seidman, P.J.A.D.
The question posed in this appeal is the extent to which a county welfare agency may obtain reimbursement under a repayment agreement for aid granted to a dependent child from the proceeds of a tort recovery for personal injuries suffered by the child. A resolution of the question involves the construction of N.J.S.A. 44:10-4, the repayment provision of the act entitled "Assistance for Dependent Children," N.J.S.A. 44:10-1 et seq. , as amended by L. 1977, c. 127, § 4.
The infant plaintiff in this case, as a dependent child, had been the recipient of benefits paid to her mother by the Essex County Division of Welfare since 1970. She was injured in an automobile accident in 1976 and a lawsuit to recover damages was instituted on her behalf against the alleged tortfeasors in February 1978. On April 20, 1978 the infant's mother signed an agreement in which she undertook to repay the Division "for that portion of any assistance so granted which may be paid
during the period pending my receipt of certain funds which are anticipated" by virtue of the claim for the injuries.
A settlement of the tort claim in the amount of $10,000 was approved by the court on March 5, 1980. Of that sum $7,254.45 was allocated to the infant subject to the joint control of her guardian and the Essex County Surrogate, and the balance to the payment of counsel fees and expenses and physicians' liens.
Prior to the entry of the judgment the Division filed a proof of claim with the court seeking reimbursement from the infant's share in the amount of $2,231.73, representing welfare benefits paid between April 1978 and February 1980. The proof of claim stated further that assistance was continuing at the rate of $134.66 a month. In a letter opinion the trial judge held that under his interpretation of N.J.S.A. 44:10-4 as amended in 1977 the Division was not entitled to reimbursement for any benefits paid prior to the date of the judgment. On the Division's objection to the form of the proposed judgment, the trial judge heard argument on the issue but reiterated the view previously expressed. The Division appealed from the pertinent portion of the judgment that was entered.
Plaintiff and the Division differ on whether the latter is entitled to reimbursement from the settlement for assistance paid from the date of the accident, as the Division argues on appeal, or, as plaintiff contends, only for assistance paid following the date of the judgment. Which position is correct turns on the meaning of N.J.S.A. 44:10-4(a) as amended in 1977. The pre-1977 and the amended version of section follow in pertinent part, with the amended one on the right:
Whenever any parent or relative with whom a child is living . . . is receiving assistance for such child pursuant to this act, and it appears that there is pending a payment to the child or to either or both his parents of funds arising from a claim or interest legally or equitably owned by such child or by either or both his parents, the county welfare board may, as a condition of eligibility or continuation of eligibility for such assistance, require such parent or parents to execute a written promise to repay, from the funds anticipated, the amount of assistance to be granted. [Emphasis supplied]
Whenever any parent or relative with whom a child is living . . . is receiving assistance for such child pursuant to this act, and it appears that there is pending entitlement to a payment to the child or to either or both his parents of funds arising from a claim or interest legally or equitably owned by such child or by either or both his parents, the county welfare agency may, as a condition of eligibility or continuation of eligibility for such assistance, require such parent or parents, or relative, to execute a written promise to repay, from the funds anticipated, the amount of assistance to be granted from the date of entitlement to such payment. [Emphasis supplied]
The solution of the problem depends upon the apparent legislative intent in changing the words "pending a payment," which precede "of funds arising from a claim or interest," to "pending entitlement to a payment [emphasis supplied]," and also, in connection with the written promise to repay, in changing "the amount of assistance to be granted from the date of entitlement to such payment [emphasis supplied]." In either case, of course, the welfare agency is authorized to seek a written promise to repay a grant of ...