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McIntosh v. De Filippo

April 21, 1995

LYNN MCINTOSH AND FRED MCINTOSH, PLAINTIFFS-APPELLANTS,
v.
PATROLMAN JOHN DEFILIPPO AND THE TOWNSHIP OF RIVER VALE, DEFENDANTS-RESPONDENTS, AND RONALD CAPUTI, LILLIAN CAPUTI, AND CHRIS GARDNER, DEFENDANTS.



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

Approved for Publication April 21, 1995

Before Judges Michels and Stern. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

MICHELS, P.J.A.D.

Plaintiffs Lynn McIntosh and Fred McIntosh appeal from a summary judgment of the Law Division entered in favor of defendants Patrolman John DeFilippo (DeFilippo) and The Township of River Vale (River Vale) in their action to recover damages for personal injuries sustained when Lynn McIntosh was bitten by a vicious dog when responding to an emergency call as a member of the Old Tappan Ambulance Corps. The pivotal issue raised by this appeal is whether plaintiff and DeFilippo are fellow employees within the meaning and intent of the Workers' Compensation Act, thereby entitling DeFilippo and River Vale to immunity provided by N.J.S.A. 34:15-8.

The facts pertinent to the issues raised by this appeal are essentially uncontroverted. The Borough of Old Tappan (Old Tappan) and River Vale are adjacent municipalities in the northeast region of Bergen County. On October 18, 1990, plaintiff was the president and an active member of the Old Tappan Volunteer Ambulance Corps. DeFilippo was employed as a police officer by River Vale. At the time of plaintiff's injury, Old Tappan and River Vale had an Interlocal Services Agreement, entered into pursuant to the Interlocal Services Act, N.J.S.A. 40:8A-1 et seq., under which River Vale and its employees provided emergency call reception and dispatching services for Old Tappan. Pursuant to their agreement, if a resident of Old Tappan made an emergency call to the Old Tappan Police Department, it would be received by a police dispatcher working for River Vale at the River Vale Police Headquarters. The River Vale police dispatcher would then answer the call and dispatch police, fire and other emergency services in Old Tappan to the scene of the emergency. Old Tappan did not, and presently does not have, its own emergency call reception and dispatching facilities.

On October 18, 1990, DeFilippo received an emergency call from defendant Lillian Caputi, an elderly woman who resided in Old Tappan. The allegations of plaintiffs' complaint as to what was said in the emergency call by Ms. Caputi and what was said and done by DeFilippo in response thereto are in dispute. Plaintiffs contend that Ms. Caputi expressly advised DeFilippo that she was being attacked by two dogs on the premises, and as a result, was having breathing difficulty and was in need of emergency medical assistance. According to plaintiffs, notwithstanding the receipt of this information, DeFilippo dispatched a call to the Old Tappan Volunteer Ambulance Corps to render aid and assistance to Ms. Caputi in which he merely stated that the person in need of assistance was having "breathing difficulties." Plaintiffs claim that DeFilippo completely failed to mention that there were vicious dogs on the premises and that one of the dogs was attacking the caller. Defendants, on the other hand, contend that it was not until DeFilippo had already dispatched plaintiff that he learned of the presence of vicious dogs at the emergency scene, and, since plaintiff had already been dispatched and was traveling in her own car where she could not be contacted, there was no way that DeFilippo could relay to plaintiff the information about the presence of the vicious dogs.

There is no dispute that plaintiff responded to the emergency call and arrived at the Caputi residence, and that when she entered Ms. Caputi's residence she was attacked and bitten by one of the dogs. Plaintiff sustained multiple lacerations to her right hand and upper right leg as well as nerve injury to her right hand as a result of the bite.

Plaintiff instituted this action against DeFilippo, River Vale, Ms. Caputi, Ms. Caputi's son Ronald Caputi, and Chris Gardner, the individual who allegedly owned the dogs, to recover damages for the personal injuries she sustained as a result of the attack by one of the dogs. Plaintiff's husband, Fred McIntosh sued per quod. After issue was joined, DeFilippo and River Vale moved for summary judgment on the ground that plaintiffs' action was barred by the fellow-employee doctrine of our Workers' Compensation Act. Based on the relationship between Old Tappan and River Vale under the Interlocal Services Agreement, the trial court concluded as a matter of law that plaintiffs' claims against DeFilippo and River Vale were barred by the fellow-employee tort immunity provided by the Workers' Compensation Act. The trial court thereupon dismissed plaintiffs' complaint and the cross-claims that the Caputis and Gardner filed against DeFilippo and River Vale. Plaintiffs then settled their claims against the Caputis and apparently dismissed the complaint against Gardner, thereby disposing of all issues as to all parties and rendering the summary judgment in favor of DeFilippo and River Vale final and appealable as of right. Plaintiffs appealed.

Plaintiffs contend that the trial court erred in determining as a matter of law that their claims were barred by the fellow-employee tort immunity provided by the Workers' Compensation Act because plaintiff and DeFilippo were not co-employees. Rather, they claim that plaintiff and DeFilippo were employees of separate and independent municipalities and neither the Interlocal Services Agreement between Old Tappan and River Vale, nor the fact that both municipalities were members of The Bergen County Joint Insurance Fund created pursuant to N.J.S.A. 40A:10-36 et seq. changed their status, and, therefore, neither DeFilippo nor River Vale are protected from suit by the fellow-employee tort immunity of N.J.S.A. 34:15-8.

Our Workers' Compensation Act, N.J.S.A. 34:15-1 et seq., establishes a no-fault compensation system for employees who are injured while working for their employer. N.J.S.A. 34:15-1, in pertinent part, provides:

When personal injury is caused to an employee by accident arising out of and in the course of his employment, of which the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he shall receive compensation therefor from his employer, provided the employee was himself not willfully negligent at the time of receiving such injury.

The remedies provided by the Workers' Compensation Act are exclusive. N.J.S.A. 34:15-8, in pertinent part, provides:

Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the ...


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