On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Brody, Stern and Keefe, JJ. The opinion of the court was delivered by Keefe, J.A.D.
Gerald Daus and Carol Ann Daus appeal from the entry of summary judgment in favor of defendant Jake Marble and third-party defendant, The Travelers Insurance Company (Travelers). We reverse the judgment entered in favor of Jake Marble, but affirm the judgment entered in favor of Travelers.
The following facts are not in dispute. On June 21, 1991, plaintiff Gerald Daus*fn1 and defendant Jake Marble were employed by Englewood Tire Warehouse and were on their employer's premises. Defendant Dane Marble, Jake Marble's 11 year old son, was also on the premises. Jake Marble apparently brought Dane to work that day to "babysit" him.
Daus was in the process of handing out keys to the company truck drivers when he was struck by a stack of pallets that were pushed into him by a forklift truck operated by Dane Marble. Daus contends that he received injuries as a result of that accident.
Daus's complaint alleges that Dane operated the forklift truck in a negligent manner. He further contends that Jake Marble "did not properly supervise his son," and "negligently permitted or allowed him to [operate] the hi-lo forklift truck[.]" The Marbles instituted a third-party action against Travelers contending that Travelers owed them a defense and indemnity under a home-owners insurance policy. Travelers answered the third-party complaint and subsequently moved for summary judgment on the grounds that the Travelers policy did not apply to bodily injury
"arising out of the . . . use . . . of motor vehicles or all other motorized land conveyances." As to Jake Marble, Travelers further contended that the policy did not cover bodily injury "arising out of business pursuits of an insured." On the return date of the summary judgment motion, the Law Division Judge, sua sponte, requested the parties to brief the question of whether plaintiff's complaint against Jake Marble was barred by the fellow servant rule found in N.J.S.A. 34:15-8.
On the adjourned date of the motion, the Judge concluded that the provisions of N.J.S.A. 34:15-8 barred plaintiff's suit against Jake Marble. He further found that a forklift vehicle was a "motorized land conveyance," within the meaning of the policy and entered summary judgment in favor of Travelers. The Judge did not address the additional theory advanced by Travelers that coverage was precluded by the "business pursuits" exclusion.
Plaintiff appeals from both judgments. Defendants Marble have not filed a separate appeal from the summary judgment entered in favor of Travelers. However, they join plaintiff, who claims that genuine issues of fact were presented on the coverage issue, in the appeal against Travelers.
We first address the issue of whether the trial Judge erred in granting summary judgment in favor of Jake Marble based upon the provisions of N.J.S.A. 34:15-8. The statute, in pertinent part, provides as follows:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong. [ N.J.S.A. 34:15-8.]
Shortly after the statute was enacted in 1961, the Supreme Court had this to say about its purpose:
Reflecting the commonly-held view that the enterprise should be the final repository of the inevitable risk of loss, the Legislature recently provided that an employee shall not be liable for ...