Before Judges Conley, Wecker and Lesemann.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Plaintiff, a bus driver for defendant New Jersey Transit (N.J. Transit) who was terminated in September 1995 because of some physical injuries, filed a New Jersey Law Against Discrimination (LAD) complaint in August 1997 arising from her termination and alleging that at the time of her termination she was fully able to perform her job. However, from September 1995 to April 1997, loan payments on plaintiff's personal vehicle were paid through a private "credit disability insurance" policy based upon claim forms filed by plaintiff with the insurer which contained affirmations of total disability.
In its motion for summary judgment in the LAD complaint, N.J. Transit claimed that these prior affirmations were irreconcilably contrary to plaintiff's LAD contentions. Specifically, plaintiff had asserted in her LAD complaint that "[a]t the time of the [September 1995] termination . . . [p]laintiff was fully capable of performing the duties and functions of a bus operator." N.J. Transit asserted before the motion judge, relying predominantly upon McNemar v. The Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), cert. denied, 519 U.S. 1115, 117 S. Ct. 958, 136 L. Ed. 2d 845 (1997), that the doctrine of judicial estoppel barred plaintiff's LAD complaint because the statements she made in connection with her private insurance claims were inconsistent with her LAD complaint in which she asserted, and must prove, that during the time of her termination she was able to perform the functions of her job. The motion judge agreed. We do not.
In setting forth the pertinent facts, we note that most are not disputed. To the extent there are disputes, the record must be viewed most favorably for plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiff has worked for N.J. Transit as a bus operator since 1984. In 1986 she sustained a work-related injury to her back which necessitated surgery and temporary leave of absence for four months, after which time she returned to work. In July 1992, plaintiff injured her neck, shoulder, and arm while lifting a wheelchair for a disabled bus passenger. At that time, N.J. Transit doctors diagnosed plaintiff with a sprained shoulder and recommended a six-month leave of absence. Plaintiff returned to work in February 1993. But in September 1994 she had additional back surgery and was on leave of absence until January 3, 1995, when she returned to work.
Plaintiff alleges that, upon her return to work, she did not experience any further problems with her neck or back except for "a little soreness." Nonetheless, in September 1995 plaintiff was examined by N.J. Transit's doctors. The reason for this medical examination is disputed. Plaintiff contends it was "in connection with her workers' compensation claim." N.J. Transit asserts the examination was in response to plaintiff's "occasional complaints of pain and discomfort in her neck." In any event, the doctors concluded that plaintiff "was over 50% disabled" and, pursuant to a N.J. Transit policy, would not be permitted to operate her bus. In this respect, N.J. Transit's medical records contain the following note:
Due to a high percentage of permanent disability, 30 percent for the lower back, at least 27 percent neck and questionable neuropathy, this patient will not be capable of returning to work as a bus operator at the present time. [Plaintiff has been] informed . . . to consider additional sources of employment that are less strenuous work.
From September 1995 to January 1996, plaintiff was not permitted to work as a bus operator and was paid temporary workers' compensation benefits. In January 1996, plaintiff was informed by N.J. Transit that those benefits would be discontinued. She was told to bid on other jobs and if not successful she would be fired. Plaintiff claims she did bid on other jobs, but was unsuccessful and she was, therefore, fired "for being unavailable for work" in early 1996. Ultimately, pursuant to a grievance proceeding brought on her behalf by her union, plaintiff was reinstated and returned to work in October 1997.
In this LAD litigation, plaintiff contends that N.J. Transit has a company policy of prohibiting employees from operating a bus if their disability for worker's compensation purposes is greater than fifty percent and that that is violative of LAD. Deposition testimony of various N.J. Transit employees reveals that this policy existed and that it was enforced. Plaintiff also contends, and we accept in the context of this appeal, that she told the N.J. Transit doctor that she "was capable of doing [her job]."
The basis for N.J. Transit's motion for summary judgment, and the heart of this appeal, is the following. In September 1993, plaintiff signed a sales contract with PNC Bank as lender for the purchase of a vehicle and agreed to obtain credit disability insurance. The insurance policy covered payment of plaintiff's monthly vehicle payments upon disability. It provided in part:
A debtor is totally disabled if due to . . . bodily injury, [she] is:
1. under the regular care and treatment of a legally qualified physician or surgeon ...