On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern and Garibaldi. For reversal and remandment -- Justices Clifford and Stein. The opinion of the Court was delivered by Handler, J. Stein, J., dissenting.
Clifford Eger, a New Jersey resident, worked as a draftsman for Allstates Design and Development Co., Inc. (Allstates), a New Jersey corporation, from 1964 until 1983. During this time, E.I. du Pont DeNemours & Co. (Du Pont) hired Allstates as a subcontractor to provide various design, drafting, and model building services in connection with Du Pont's operation of the Savannah River Nuclear Plant, a South Carolina facility owned by the United States Department of Energy, which manufactures radioactive isotopes for defense and industrial uses.
On various occasions over the course of his nineteen-year employment with Allstates, Eger was sent to the Savannah
River facility to perform certain tasks in connection with his development of particular designs to suit engineering specifications provided by Du Pont. Plaintiffs allege that on one or more of his trips to the Savannah River facility, Eger was exposed to radioactivity that caused him to contract acute myeloblastic leukemia, a form of leukemia known to be caused by exposure to radiation and certain toxic chemicals.
Due to his illness, Eger left Allstates in July of 1983. Prior to his departure, in March of 1983, Eger filed a workers' compensation action in New Jersey against Allstates. Subsequently, in April of 1984, Eger and his wife, Mildred, brought a third-party tort action against Du Pont and Allstates, the hospital and doctors responsible for Du Pont's screening program, and various chemical companies. The plaintiffs have since dismissed without prejudice the common-law actions against Allstates and the chemical companies.
Du Pont moved for summary judgment, claiming that as the statutory employer of Eger under the South Carolina workers' compensation act, it was immune from common-law tort liability. The Law Division granted this motion. On appeal by the plaintiffs, directed to Du Pont only, in a per curiam unpublished opinion, the Appellate Division affirmed the trial court's ruling. We granted plaintiffs' petition for certification, 107 N.J. 634 (1987), and now affirm the judgment of the Appellate Division.*fn1
There is a difference in the role of a general contractor in the workers' compensation systems of New Jersey and South
Carolina. In New Jersey, the rights and duties defined by the workers' compensation statute arise out of the employment contract between the employee and his immediate employer. The employer, unless adequately self-insured, is required to purchase workers' compensation insurance providing benefits in accord with a statutory schedule for all injuries arising out of and in the course of employment regardless of the fault of the employer. N.J.S.A. 34:15-7. In return for the employer assuming the burden of providing this coverage, the employee surrenders the right to pursue any other remedy against the employer, thus immunizing the employer from tort liability. N.J.S.A. 34:15-8. General contractors, however, are not parties to the employment contract between a subcontractor and its employees. They are therefore not required to provide workers' compensation coverage, and do not enjoy the immediate employer's immunity from tort liability. Corbett v. Starrett Bros, 105 N.J.L. 228, 231 (E. & A. 1928). While a general contractor may be called on to provide workers' compensation to the employee of a subcontractor that has violated its statutory obligation to provide workers' compensation coverage, N.J.S.A. 34:15-79, this secondary liability is imposed to ensure that a worker has some source of recovery, and to provide an incentive for general contractors to place work with insured subcontractors; it has no bearing on the tort liability of a general contractor to a subcontractor's employee. See, e.g., Boehm v. Witte, 95 N.J. Super. 359, 366 (Law Div.1967).
Under South Carolina law, however, a general contractor is equated with a workers' immediate employer for the purposes of workers' compensation. S.C.Code § 42-1-430. Thus, an injured employee of a subcontractor can sue either the subcontractor, the immediate employer, or the general contractor, the statutory employer, for workers' compensation, S.C.Code § 42-1-450, and the general contractor is required to provide coverage for the employees of its subcontractors as if they were its own employees. S.C.Code § 42-1-410. Although provision is made for general contractors to shift the ultimate
responsibility for compensation expenses onto an insured subcontractor, S.C.Code § 42-1-440, general contractors in South Carolina, unless self-insured, must nevertheless carry insurance providing primary compensation coverage, and thus are accorded the same immunity from tort liability as immediate employers. S.C.Code § 42-1-540; see Parker v. Williams & Madjanik, 275 S.C. 65, 70-72, 267 S.E. 2d 524, 527 (1980) (a workers' compensation claim is the only relief an employee can seek against his or her statutory employer).
In sum, the laws of New Jersey provide that the subcontractor is primarily liable for workers' compensation; the general contractor is only secondarily liable. Immunity from a third-party tort claim is conferred only on the subcontractor, who as the employer is obligated to provide workers' compensation coverage, while the general contractor remains exposed to tort liability. In contrast, South Carolina renders both the general contractor and the subcontractor directly responsible for providing workers' compensation coverage, and in return immunizes both from tort liability. Therefore, in this case, under New Jersey law, the Egers could bring a third-party action in tort against Du Pont and Du Pont could not claim immunity, while under South Carolina law Du Pont as a statutory employer responsible for workers' compensation coverage could claim absolute immunity from this tort action.
Three decades ago, in Wilson v. Faull, 27 N.J. 105 (1958), this Court was confronted with an identical*fn2 conflict between
New Jersey and Pennsylvania workers' compensation laws. We held that a tort action by a New Jersey resident against his statutory employer, a general contractor required by Pennsylvania law to provide compensation coverage for subcontractors' employees at a Pennsylvania worksite, was barred by the exclusive remedy provision of the Pennsylvania workers' compensation statute. Arguing that Wilson represents a mechanical and outmoded approach to conflict of laws, plaintiffs urge this court to abandon the rule in Wilson and allow them to maintain their tort action against Du Pont.
In determining that the exclusive remedy provision of the Pennsylvania statute should be honored, the Court in Wilson stressed that it was rejecting the application of any mechanical rule to resolve the choice of law question:
Choice of law in the situation presented here should not be governed by wholly fortuitous circumstances such as where the injury occurred, or where the contract of employment was executed, or where the parties resided or maintained their places of business, or any combination of these "contacts." Rather, it should be founded on broader considerations of basic compensation policy which the conflicting laws call into play, with a view toward achieving a certainty of result and effecting fairness between the parties within the framework of that policy. The injured workman has a prompt and practical compensation remedy in any state having a legitimate interest in his welfare. The person who provides that compensation in an interested state has a definitive liability which is predictable with some degree of ...