On appeal from Superior Court of New Jersey, Law Division, Camden County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
This is a common law medical malpractice action brought by an employee of the self-insured Camden County which also employed defendant physician. The trial judge granted defendant's motion for summary judgment, on the motion papers and without argument or written decision. On a motion for reconsideration he said, in a very brief letter opinion that cited neither statute nor case in support, "The Statutes of New Jersey concerning workmen's [ sic ] compensation and the cases interpreting same prohibit an employee from suing a fellow employee for injuries sustained on the job limiting plaintiff's action to workmen's compensation." Plaintiff appeals. We affirm.
There is no question respecting the factual finding that both plaintiff and defendant were employees of the same employer and in whose employ the accident requiring treatment occurred. Plaintiff does not dispute this, but argues that this blending of separate "jural personalities" is incorrect, and that correctly viewed, the employer as insurer or medical provider, was a separate jural personality from the employer who hired plaintiff as a food service worker.
The argument, invoking the so-called dual capacity doctrine, is not frivolous. In Mager v. United Hospitals of Newark, 88 N.J. Super. 421 (App.Div.1965), aff'd o.b. 46 N.J. 398 (1966), upon which plaintiff leans heavily, we held that an insurance company which employed the alleged tortfeasor doctor and insured the patient's employer was not immune from suit, commenting that the insurance company was under no obligation to operate a clinic, even as Camden County was under no obligation to hire its own treating physician here. But the distinction from the matter before us is obvious: in Mager the insurance company was the employer of the physician but not of plaintiff patient.
The several jurisdictions which have considered the problem do not at all agree. Some states purport to apply the dual capacity doctrine generally, Duprey v. Shane, 39 Cal. 2d 781, 249 P. 2d 8 (Sup.Ct.1952); Hoffman v. Rogers, 22 Cal.App. 3d 655, 99 Cal.Rptr. 455 (D.Ct.App.1972), at least in the situation of a hospital employee where "the nonemployer aspect of the employer's activity generates a different set of obligations by the employer toward the employee," D'Angona v. Los Angeles Cty., 27 Cal. 3d 661, 613 P. 2d 238, 242, 166 Cal.Rptr. 177 (Sup.Ct.1980). But cf. Dixon v. Ford Motor Co., 53 Cal.App. 3d 499, 125 Cal.Rptr. 872 (D.Ct.App.1976), which commented on the fact that several cases refused to extend the rationale of Duprey v. Shane, supra, to different factual contexts.
Ohio followed Duprey, citing it, and, akin to D'Angona v. Los Angeles Cty., supra, but without citing it, spoke of "the decisive test of dual-capacity [being] not with how separate the employer's second function is from the first, but whether the second function generates obligations unrelated to those flowing from the first, that of an employer." Guy v. Arthur H. Thomas Co., 55 Ohio St. 2d 183, 378 N.E. 2d 488, 491 (Sup.Ct.1978).
On the other hand, New York has rejected the doctrine, Garcia v. Iserson, 33 N.Y. 2d 421, 309 N.E. 2d 420, 353 N.Y.S. 2d 955 (Ct.App.1974), but in doing so was careful to distinguish the situation before it from the situation in which the employer was in the business of rendering medical care. McAlister v. Methodist Hospital of Memphis, 550 S.W. 2d 240 (Tenn.Sup.Ct.1977), rejected the dual capacity concept even in a case where the injured employee was employed at a hospital. Michigan, refusing immunity to a municipal medical center in connection with treatment to a police officer, cited Garcia v. Iserson, supra, and based its decision on the fact that "[t]he medical center is not a facility intended for exclusive treatment of city employees. It was merely an unfortunate coincidence that it was utilized by
plaintiff." Fletcher v. Harafajee, 100 Mich.App. 440, 299 N.W. 2d 53, 55 (Ct.App.1980).
The issue has produced vigorous dissents. Jenkins v. Sabourin, 104 Wis. 2d 309, 311 N.W. 2d 600 (Sup.Ct.1981); McCormick v. Caterpillar Tractor Co., 85 Ill. 2d 352, 53 ...