On appeal from the Superior Court, Law Division, Passaic County.
Furman, Shebell and Stern. The opinion of the court was delivered by Furman, P.J.A.D.
On consolidated appeals the issue before us is the interplay as applied to the facts, of what are argued to be conflicting statutes, the Tort Claims Act, N.J.S.A. 59:9-2(e), which provides for the deduction of collateral source benefits from awards against public entities, and the Worker's Compensation Act, N.J.S.A. 34:15-40, which provides for the imposition of a worker's compensation lien in the amount of medical and compensation payments already paid, upon a third party recovery by the employee. We hold that the two statutes are reconcilable. We reverse and remand for a disposition giving effect to both in accordance herewith.
In the jury trial of the tort action, plaintiff Ortega, an employee of the State of New Jersey, was awarded a verdict of $35,000 against defendant City of Passaic, its employee defendant
Simbol, and defendant Valdes; the jury apportioned liability for the causation of the accident pursuant to the comparative negligence section of the Tort Claims Act, N.J.S.A. 59:9-4: 72 1/2% against defendants city and Simbol and 27 1/2% against defendant Valdes. Plaintiff had previously been paid worker's compensation medical and disability benefits totalling close to $6,000.
In the companion case instituted subsequent to the tort verdict, plaintiff sought a declaratory judgment against the State that its worker's compensation lien for payments to him should be limited to 27 1/2%, the proportion of the individual defendant Valdes' liability under the jury verdict. He was apprehensive that, because defendant city and its employee were exempt under N.J.S.A. 59:9-2(e) from payment of the worker's compensation lien, defendant Valdes' limited liability insurance coverage of $15,000 would be insufficient to pay off 100% of the worker's compensation lien and, in addition, the balance of the tort judgment.
The State appeals from declaratory judgment entered on order to show cause, limiting the State's entitlement to reimbursement to 27 1/2% of its total lien. In the tort action, plaintiff appeals from an order denying his motion to amend the final judgment to provide for liability of defendant Valdes in the amount of the judgment less codefendants' 72 1/2% proportion and the "entire amount of any permanent disability award." That motion was brought to protect plaintiff's right to full compensation in the event of a conclusion adverse to him in the declaratory judgment action at the trial level or on appeal.
The judgment entered in the tort action is not itself appealed from. That judgment purports to award judgments against the respective defendants in favor of plaintiff in the proportions of liability provided in the jury verdict, that is, 72 1/2%, less 72 1/2% of medical and disability payments, or $21,153.32 against defendants city and Simbol and 27 1/2%, or $11,007.84 against defendant Valdes.
That judgment, in our view, mistakes the governing law. Under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., joint and several liability of tortfeasors remains the law. A judgment in the total amount of a jury verdict is entered against each defendant determined by the jury to be liable, irrespective of the proportion of each defendant's negligence. A defendant who pays more than the share of liability apportioned by the jury may seek contribution for his payment in excess of that apportioned share against any tortfeasor codefendant who has paid plaintiff less than his own apportioned share. N.J.S.A. 2A:15-5.3.
As the Supreme Court stated in Rivera v. Gerner, 89 N.J. 526, 535 (1982):
N.J.S.A. 2A:53A-1 et seq. allows a plaintiff to sue either defendant for the entire claim or to sue them jointly and levy execution of the entire amount against either alone. The defendant is entitled to seek contribution from his fellow defendants if recoverable. See Van Horn v. William Blanchard Co., 88 N.J. 91, 96 (1981) and Tino v. Stout, 49 N.J. 289 (1967) as to disparate effects upon joint tortfeasors. If one defendant were insolvent or bankrupt, a second joint tortfeasor might be liable for the total amount of the judgment. This result would seem to impose a disproportionate burden on the solvent defendant. However, this rule operates to provide the injured person with full recovery. Just as the common law did, the ...