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Maggio v. Migliaccio

Decided: July 22, 1993.

FRANK MAGGIO AND PATRICIA MAGGIO, PLAINTIFFS-APPELLANTS,
v.
FREDERICK MIGLIACCIO AND WEST LONG BRANCH FIRE CO. NO. 2, DEFENDANTS-RESPONDENTS, AND BOROUGH OF WEST LONG BRANCH, DEFENDANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Petrella, D'Annunzio and Keefe, JJ. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

[266 NJSuper Page 112] Plaintiff, Frank Maggio, a West Long Branch police officer, appeals from the entry of summary judgment in favor of defendants Frederick Migliaccio, a volunteer fireman, and the West Long Branch Fire Company No. 2, (Fire Company) of which

Migliaccio was a member.*fn1 The issue on appeal, as phrased by the plaintiff, is "whether a paid police officer and a volunteer fireman, both from the same municipality, are co-employees such that the workers' compensation law would prohibit an action between them for personal injuries." For the reasons stated herein, we find that defendant Migliaccio was in the same employ as plaintiff Maggio at the time of plaintiff's accident. Thus, the suit is barred by reason of N.J.S.A. 34:15-8, and the judgment under review is affirmed.

Plaintiff concedes in his appellate brief that the facts are not in dispute. On August 13, 1990, plaintiff was a paid member of the West Long Branch Police Department and defendant Migliaccio was a volunteer member of the West Long Branch Fire Company No. 2. On that date, plaintiff and defendant responded to a fire call, to which they were alerted by the West Long Branch Police Department dispatcher. Plaintiff was engaged in directing traffic at the fire scene, and defendant Migliaccio was engaged driving a fire truck.

Apparently, one end of a fire hose from Migliaccio's truck was attached to a fire hydrant. Migliaccio then proceeded toward the fire scene with the hose trailing behind the truck. As he made a turn in front of traffic that plaintiff had stopped, the hose struck plaintiff with sufficient force to knock his legs out from under him. Plaintiff fell to the ground and sustained injuries.

The amended complaint, which named the Borough of West Long Branch (Borough) as a party, alleged that it was liable because it "exercised supervision and control of the defendant, West Long Branch Fire Department."*fn2 The amended complaint further alleged that the fire truck was owned by defendant Fire Company and operated by its agent, Migliaccio, in "a reckless,

careless and negligent manner[.]" Migliaccio and the Fire Company answered the complaint and asserted in their fifth separate defense that plaintiff's action was barred by N.J.S.A. 34:15-8.

Subsequently, Migliaccio and the Fire Company moved for summary judgment. The following facts are taken from Migliaccio's certification in support of the motion. The Fire Company is "incorporated," and is the owner of the building where the fire fighting equipment is stored. However, the Borough of West Long Branch provides all of the fire fighting equipment used by the Fire Company; pays rent of approximately $1,400 per year for the storage of the fire fighting equipment on the Fire Company's premises; bears the expense of all repair and replacement of equipment; provides automobiles to the chief and assistant chief of the fire company; and pays for all of the training of the volunteer fire fighters, except for the courses taken at the Monmouth County Fire Academy which are free. In addition to the above expenses, the Borough of West Long Branch pays for workers' compensation insurance covering the volunteer fire fighters, which is the same policy that insures municipal employees. The Borough of West Long Branch Police Department also acts as the dispatcher for the fire company.

Discovery revealed that a West Long Branch ordinance provides: "the Fire Department of this Borough shall consist of the Borough Chemical and Truck Co. No. 1 and West Long Branch Fire Co. No. 2."

The Law Division Judge, Judge John Arnone, granted defendants' motion for summary judgment, finding that Maggio and Migliaccio were in the same employ at the time of the accident.

Plaintiff, as a police officer and employee of the Borough of West Long Branch, was entitled to workers' compensation benefits payable by the municipality, since he was injured in the "line of duty[.]" N.J.S.A. 34:15-43. Likewise, defendant Migliaccio, had he been injured during the course of his response to the fire call, would also have been entitled to ...


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