The opinion of the court was delivered by: Menza
The question in this case is whether an employee's sick time, and an employer's allowance of wages to an employee for personal days and family illness, are collateral sources for which defendant is entitled to a credit against a claim for lost wages pursuant to N.J.S.A. 2A:15-97.
Plaintiff was a passenger in an automobile which was involved in an accident that resulted in her sustaining injuries. She contends that her injuries caused her to lose time from work, for which she seeks compensation from defendant tortfeasor. The owner and driver of the auto in which plaintiff was a passenger, plaintiff's husband, did not have Income Continuation Insurance Coverage and thus said coverage was not available to plaintiff. Plaintiff has therefore made a claim against defendant for her lost wages.
Defendant contends that plaintiff's lost wage claim is subject to the statutory collateral source rule and that her sick pay and the wages she received for her personal days and family illness days are therefore to be divulged to the jury and ultimately deducted from any award that she may receive compensating her for lost wages.
The collateral source statute, N.J.S.A. 2A:15-97, provides in pertinent part:
...if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family...
Kiss v. Jacob, 268 N.J. Super. 235, 633 A.2d 544 (App.Div.1993) sets forth the purpose of the statute:
The overriding legislative intent of the Legislature in adopting N.J.S.A. 2A:15-97 was to prevent a claimant from receiving benefits beyond the damages awarded under a judgment entered and to relieve defendants and insurance companies from having to compensate plaintiffs for damages in excess of the total amounts of their losses
Put another way, the Legislature intended that the claimant should not receive duplicate benefits. The question then, is whether compensation for lost wages and receipt of compensation for sick time and for personal days and family illness days, constitute duplicate benefits. At first blush it would appear so. Cases have held that social security payments, ( Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 660 A.2d 1236 (App.Div.1995)), to which a person obviously contributes, and insurance proceeds, for which a party pays premiums, are collateral sources which fall within the contemplation of the statute.
Although there are no New Jersey cases which have addressed this question, there are a few cases in other jurisdictions which have addressed it.
In Bruwelheide v. Garvey, 465 N.W.2d 96 (Minn.1991), the Minnesota Court of Appeals held that sick leave pay received by a worker, which could be accumulated and cashed out upon retirement, was not a "collateral source" under Minnesota's collateral source statute, a statute similar to the New Jersey statute. In that case, plaintiff was injured as a result ...