On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Michels, Gruccio and D'Annunzio. The opinion of the court was delivered by Michels, P.J.A.D. D'Annunzio, J.A.D. (concurring).
We granted leave to plaintiff City of Union City (Union City), which claimed to be a subrogee of plaintiff Frederick E. Foster (Foster), to appeal from a summary judgment of the Law Division declaring Foster to be solely entitled to the liability insurance coverage afforded defendant Eleanor Veals (Veals) by defendant MCA Insurance Company (improperly pleaded as Motor Club of America and hereinafter referred to as MCA) and directing MCA to pay those policy limits to Foster for his personal injuries.
Briefly, Foster was a passenger in his motor vehicle which was operated by his son, third-party defendant Jason Foster. The Foster vehicle collided with a vehicle owned and operated by Veals and Foster sustained serious personal injuries. At the time of the collision, Foster was employed by Union City as a fireman and was a member of the firemens' union. He was neither on duty nor acting in the course of his employment at the time of the accident. Under the terms of its Collective Bargaining Agreement with the Union City firemens' union, Union City was required to pay sick leave to Foster if he was out of work for any medical reason, even if that reason did not arise out of the course of his employment. The Collective Bargaining Agreement, effective at the time, in pertinent part, provided:
SICK LEAVE AND TERMINAL LEAVE
A. Sick leave policy for all employees covered by this Agreement shall continue to be administered as in the past, i.e., unlimited sick leave regardless of the nature of the illness or injury.
H. 1. For the purposes of terminal leave, however, and that purpose only, a sick leave bank shall be created consisting of one hundred twenty (120) hours per year for each calendar year of employment with the City, which bank shall only be reduced by reason of sick leave used during the employee's tenure with the City for absences as a result of non-work connected injury or illness.
2. Upon the employee's retirement he shall be paid a terminal leave benefit in no event less than seven hundred twenty (720) hours pay or on the basis of one half of the remaining accumulated sick leave (one hour for every two), whichever benefit is greater.
3. Sick time shall be deducted on an hour for hour basis for regularly scheduled work time which is missed due to non-work related injury or illness.
4. In the case of an employee's death, such shall be considered retirement for the purposes of the terminal leave benefit being awarded and his estate shall be entitled to the compensation owed.
I. 1. Work connected injury or illness will not be cause for deduction of any benefits from the ...