On appeal from Superior Court, Law Division, Passaic County.
J.h. Coleman, Dreier and Landau. Landau, J.A.D.
This appeal arises from the Law Division grant of summary judgment favorable to defendants-respondents Mark Curiale and Charles Watson on the complaint of plaintiff-appellant Angelica Phillips, as Administratrix and Administratrix ad Prosequendum of the Estate of Walter Phillips, Decedent (Administratrix).*fn1 Administratrix sued those defendants and defendant FMC Corporation for damages allegedly arising out of injuries suffered by the late Walter Phillips (Phillips) while riding in an armored personnel carrier during a New Jersey National Guard training exercise at Fort Drum, New York. Phillips was rendered a quadriplegic as the result of this 1978 accident. Tragically, he took his own life in 1987.
The circumstances of the case were considered by the Supreme Court in 1985, Phillips v. State, Dept. of Defense, 98 N.J. 235, 486 A.2d 318 (1985). The Supreme Court then held that Phillips had a cause of action in tort against his two fellow Guardsmen, Curiale and Watson, 98 N.J. at 249-250, 486 A.2d 318, and that Phillips was limited in a direct action against the State to the exclusive military compensation remedy provided by N.J.S.A. 38A:13-1, et seq. Phillips, 98 N.J. at 250, 486 A.2d 318.
The Court specifically rejected the argument that the fellow employee rule of the Workers' Compensation Act, N.J.S.A. 34:15-8, should be deemed part of the military compensation law, Phillips, 98 N.J. at 250, 486 A.2d 318. It also left open for
further adjudication the question whether Chapter 10 of the Tort Claims Act, which provides indemnification by the State to State employees against judgments suffered by reason of non-willful and non-fraudulent acts or omissions within the scope of employment, should be applicable in a case such as this, see 98 N.J. at 250, 486 A.2d 318. However, it invited the Legislature "to consider the seemingly anomalous and conflicting policies that have resulted from the retention of the military compensation law and the elimination of immunity for members of the military." Id. at 251, 486 A.2d 318.
The Legislature responded to this invitation by enacting L. 1987, c. 217, which brought military compensation law into closer harmony with workers' compensation law. It provided, among other things, that:
Any person who becomes a member of the organized militia of the State of New Jersey shall be deemed to have surrendered his right to any other method, form or amount of compensation or determination thereof from the State or the organized militia, other than as provided in this chapter for any injury or death occurring to him in line of duty. Such entry into the militia shall bind the member's personal representative, surviving spouse and next of kin, as well as the State of New Jersey and the organized militia.
Neither the State, the organized militia nor any member of the organized militia shall be liable to anyone at common law or otherwise for an injury or death compensable under this chapter, including any injury or death that results from an act or omission occurring while the member was in the same service of the organized militia as the person whose actions caused that injury or death, except for injury or death caused by an intentionally wrongful act of a comember.
The Public Safety and Defense Committee Statement to this legislation included the following:
This bill . . . eliminates the liability of the State, National Guard and its members for injury or death occurring in the line of duty, except as provided under the military compensation law and except for injury or ...