This motion poses a heretofore unanswered question concerning the construction of N.J.S.A. 59:9-6(a), a section of the New Jersey Tort Claims Act. The critical issue is whether that section requires dismissal of a suit against a public employee when final judgment is entered in favor of a public entity for failure to comply with the notice of claim requirements of the act.
The underlying suit is a tort action for injuries sustained in a two-car collision in Atlantic City on April 22, 1980. One of the vehicles involved was a car owned by Atlantic County and driven by defendant Silvern, a county employee. Suit was filed on April 20, 1982. No timely notice of claim, required within 90 days of accrual of the cause of action as a prerequisite to suit against a public entity, was ever filed with the county. See N.J.S.A. 59:8-3; 59:8-8. Accordingly, the action against the county was dismissed on motion by the county on June 18, 1982. The county now moves for certification of that dismissal as a final judgment under R. 4:42-2; it then contends that this certification mandates dismissal of the action against defendant Silvern under N.J.S.A. 59:9-6(a).*fn1
R. 4:42-2 gives a trial court discretion, in a case involving multiple parties, to enter a "partial" final judgment if all rights
and liabilities of one party have been adjudicated and no just reason for delay exists. These criteria are satisfied in this case. The order dismissing the county as a defendant determines all its rights and liabilities in the case against both plaintiffs and codefendants. Since the notice of claim provisions of the Tort Claims Act forever bar plaintiff from seeking relief against the county, see Pinckney v. Jersey City, 140 N.J. Super. 96, 100-103 (Law Div.1976), and since the order of dismissal creates no danger that certification will render an interlocutory order appealable, see Leonardis v. Bunnell, 164 N.J. Super., 338, 340 (App.Div.1978), certif. den. 81 N.J. 265 (1979), no just reason to delay certification exists. Accordingly, I will certify the order dismissing the action against the county as a final judgment.
This certification thus squarely raises the county's argument under N.J.S.A. 59:9-6(a). That section provides:
Where a claimant has pursued his remedy against a public entity for a claim arising out of the act or omission of a public employee of a public entity, a judgment or settlement shall be a complete bar to suit against the employee in a claim arising from the same subject matter.
It is the county's contention that "judgment" in this section should include a final judgment dismissing a claim against a public entity for failure to comply with the notice requirements of the Tort Claims Act. For the reasons herein stated, I hold that this position is incorrect, and that the judgment herein entered against the county is not a bar to the action against the employee.
There is no legislative comment to N.J.S.A. 59:9-6(a), and no reported decisions construing it exist. Significantly, however, the Tort Claims Act does not bar suit against a public employee, individually, for acts done in the course of his employment, simply because a plaintiff elects not to sue the public entity. See N.J.S.A. 59:3-1 and comment thereto. The notice of claim requirement is expressly limited to claims against public entities. N.J.S.A. 59:8-3. Consequently, filing of a claim against a public entity is not a prerequisite to suit against an individual employee, Lutz v. Semcer, 126 N.J. Super. 288, 300 (Law Div.1974), even when a claimant might thereby recover
from the entity indirectly, through indemnification, what he could not recover directly. See Lameiro v. West New York Bd. of Ed., 136 N.J. Super. 585, 590 (Law Div.1975). Had plaintiff in this case declined, or simply failed, to sue the county, there is no question that her action against defendant Silvern would be viable.
Given this conclusion, I do not believe that N.J.S.A. 59:9-6(a) can be read to force plaintiff to surrender her rights against an individual employee simply because she failed to comply with the procedural prerequisite to suit against the public entity under the Tort Claims Act. The statute bars suit against an employee when a plaintiff has "pursued his remedy" against an entity for the employee's tort and secured a judgment or settlement. This language seems intended to bar suits against an employee when the identical claims have been substantively adjudicated against the entity -- the normal circumstance when a plaintiff seeks to hold an entity vicariously liable for an employee's actions. In other words, the purpose of this section most logically appears to intend to bar a claim against the employee on principles of res judicata or collateral estoppel, rather than to establish a new procedural requirement. Compare N.J.S.A. 59:9-6(b), which with identical language precludes suit against the entity in the reverse situation, where problems of ...