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Townsend v. Great Adventure

Decided: March 25, 1981.

MICHAEL TOWNSEND, PETITIONER-APPELLANT,
v.
GREAT ADVENTURE, RESPONDENT-RESPONDENT. MICHAEL TOWNSEND, PLAINTIFF-APPELLANT, V. GREAT ADVENTURE, A BUSINESS ENTITY, HOWARD GOLDFINE, WILLIAM GOLDFINE AND MONA GOLDFINE, DEFENDANTS-RESPONDENTS, AND RICHARD ROE, A FICTITIOUS NAME, DEFENDANT



On appeal from the Division of Workers' Compensation, Department of Labor and Industry. On appeal from the Superior Court, Law Division, Monmouth County.

Matthews, Morton I. Greenberg and Coleman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.

Greenberg

[178 NJSuper Page 511] Appellant appeals from judgments of the Division of Workers' Compensation and the Superior Court, Law Division, dismissing his claim petition for workers' compensation and his Law Division action seeking civil damages. In each case appellant sought a recovery as a result of injuries he suffered in a motor vehicle accident on August 29, 1975.

The procedural history and factual background of the cases must be set forth at some length. It is undisputed that on and for some time before August 29, 1975 appellant had been employed to do maintenance work by Great Adventure, which is the respondent in the compensation case and a defendant in the Law Division. On August 29, 1975 appellant had the day off but nevertheless came to Great Adventure's premises to collect his paycheck. At that time he was involved in an accident in Great Adventure's parking lot when his motorcycle collided with an automobile being driven by Howard Goldfine, another employee of Great Adventure, who was on his way to work. Howard Goldfine had a learner's permit rather than a driver's license. He was accompanied by his sister, Mona Goldfine, a licensed driver. The Goldfine vehicle was being driven with the permission of its owner, William Goldfine, father of Howard Goldfine and Mona Goldfine.

Plaintiff was seriously injured and required hospitalization. Great Adventure's workers' compensation insurance carrier, Fireman's Fund Insurance Company, was notified of this accident. On September 17, 1975 a representative of Fireman's Fund told appellant, in a telephone call, that he was not entitled to benefits under the Workers' Compensation Act. This conversation was confirmed in a letter to appellant from Fireman's Fund dated September 18, 1975. But appellant, while hospitalized, was paid some wages by Great Adventure and was given sick day compensation. He also received temporary disability benefits. Appellant returned to work for Great Adventure in October 1975 and worked until July 1976. Various of his hospital bills were paid by the Aetna Life Insurance Company, a private insurance carrier providing certain employee health benefits for Great Adventure's employees.

In 1975 and 1976 appellant brought no action either at law or in the Division of Workers' Compensation against Great Adventure or anyone else as a result of the accident. In August 1977, however, appellant did retain counsel when pressed for payment of medical bills. As a result, two actions were instituted. On

August 25, 1977, within two years of the accident, appellant filed a complaint in the Superior Court, Law Division, against Great Adventure, John Doe and Richard Roe. See R. 4:26-4. The complaint stated: "The name of the driver and owner of the responsible vehicle are presently unknown and are referred to as John Doe." The complaint further recited: "Upon information and belief other persons or entities may be responsible for the care, maintenance, and control of the premises on the date in question. They are referred to in the caption as Richard Roe." Thus, in the Law Division complaint the original defendants were Great Adventure, the driver and owner of the vehicle with which appellant collided and the persons responsible for the care, maintenance and control of the parking lot. There was no suggestion in the Law Division complaint that any other person or entity could be liable for appellant's losses and injuries. The complaint against Great Adventure sought recovery on a theory that it "has denied to plaintiff benefits compensable under the workers' compensation laws of this State. Should the position of the said defendant prevail, then plaintiff may assert a civil action against said defendant."

On September 28, 1977 appellant filed an amendment to his Law Division action. He substituted Howard Goldfine as the driver of the vehicle and William Goldfine as the owner of the vehicle for the fictitious John Doe designation. Thus, at that point defendants were Great Adventure, Howard Goldfine, William Goldfine and Richard Roe. On that same date appellant filed a claim petition in the Division of Workers' Compensation against Great Adventure.

Great Adventure filed an answer to the claim petition on December 14, 1977. It denied that "the accident in which the petitioner was involved arose out of and in the course of his employment . . . ." It also asserted that the claim was untimely as having not been filed within two years from the day of the accident. In an answer filed on February 1, 1978 to an amended claim petition, Great Adventure continued to assert the same defenses. Great Adventure on February 21, 1978 filed an answer

in the Law Division action setting forth as a separate defense: "Plaintiff's action is barred under R.S. 34:15-8, as amended." N.J.S.A. 34:15-8 provides that the remedies of an employee injured in an accident arising out of and in the course of employment are restricted to those provided under the Workers' Compensation Act. Thus Great Adventure in the workers' compensation case took the position that any claim against it was not compensable under the Workers' Compensation Act so that the petition should be dismissed, and in the Law Division action maintained that any claim against it was compensable under the Workers' Compensation Act so that the Law Division action should also be dismissed.

On September 1, 1978 Great Adventure changed its position in the compensation action by filing an amended answer dated August 31, 1978 in which it admitted that the accident arose out of and in the course of employment. But it still asserted that the petition was not timely and should be dismissed. Thus, as of September 1, 1978, Great Adventure was contending, in both the Law Division and Division of Workers' Compensation, that appellant had suffered an injury originally compensable under the Workers' Compensation Act though barred as not timely brought. Appellant agrees that the injury did arise out of and in the course of employment. Accordingly, we accept this stipulation of the parties which is undoubtedly well founded in law. See Hammond v. Great Atlantic & ...


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