[204 NJSuper Page 64] On cross motions for summary judgment, Travelers Insurance Company (Travelers) and New Jersey Transit Corporation
(Transit)*fn1 each seek a determination as to which of them shall be primarily liable for uninsured motorist coverage to Dorothy Hood who, as a passenger in a bus, owned and operated by Transit on September 24, 1982, was injured when the bus was struck in its rear section by a vehicle which, the parties agree, was solely responsible for the accident.
There are no genuine issues of fact in dispute and the matter is to be determined by a summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954).
Transit acknowledges that as a self-insured it is responsible for providing uninsured motorist (U.M.) coverage as mandated by N.J.S.A. 17:28-1.1. The issue it raises, however, is that since Transit is a public entity, public policy requires that U.M. coverage first be provided by the private insurance carrier which issued the policy under which Hood is to be provided with that coverage before payment is to be made from state funds. The issue thus presented is one of first impression in New Jersey.
There must be an initial determination of whether Transit is, in fact, a public entity. In the case of The Gibson-Homans Company v. New Jersey Transit Corporation, et al, 560 F. Supp. 110 (D.N.J.1982) the court determined, after a thorough review of the Legislature's stated reason for the creation of Transit, the nature of the office held by some of the board members, the supervisory authority of the executive branch of the government through the Commissioner of Transportation and the Governor, and the fiscal responsibility of the State for appropriations on account of the operating revenues of Transit, that any judgment against Transit would have a financial impact on the State since Transit is an alter ego of the State for
diversity purposes. See also Fitzpatrick v. Bitzer, 519 F.2d 559, 564-65 (2 Cir.1975), rev'd on other grounds 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976). While the decision in Gibson-Homans is not binding upon this court, I find it to be persuasive and I choose to follow it in this case.
The legislative creation of Transit was to provide
Transit was established as part of the executive branch of the State government as a body corporate and politic with corporate succession pursuant to the New Jersey Transportation Act of 1979, N.J.S.A. 27:25-1 et seq. It was to be
Transit is governed by a seven-member board consisting of the New Jersey Commissioner of Transportation, the State Treasurer and other members of the executive branch selected by the Governor who shall also serve ex-officio, and four public members appointed by the Governor. N.J.S.A. 27:25-4(b). The Governor may remove any public member for cause. N.J.S.A. 27:25-4(b). Meetings of the board are governed by the Open Public Meetings Act. N.J.S.A. 27:25-4(g). The State Auditor may examine the accounts and books of Transit. N.J.S.A. 27:25-20(e). The rules and regulations adopted by Transit are to be published in accordance with the Administrative Procedure Act and filed with the Director of the Office of Administrative Law. N.J.S.A. 27:25-5(e).
Among the powers granted to Transit by the Legislature are the power to sue and be sued, N.J.S.A. 27:25-5(a). However, contract claims and suits against Transit are governed by the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq. ...