On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-1856-00.
Before Judges King, Wecker and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, New Jersey Manufacturers Insurance Company, appeals the Law Division's entry of summary judgment declaring plaintiff entitled to uninsured motorist (UM) benefits under his automobile liability policy. N.J.S.A. 17:28-1.1. Defendant argues that plaintiff's claim should be barred by the provisions of the Worker's Compensation Act, N.J.S.A. 34:15-8. We disagree and affirm.
The facts are not in dispute. Plaintiff, Vincent J. Mule, was involved in an automobile accident with Mark Mattson. On the date of the accident, both Mule and Mattson were employed by Lockheed Martin at its facility in East Windsor. The accident occurred at approximately 8:15 p.m. in the employee parking lot owned and controlled by the employer. Mattson's workday began at 7:45 a.m. and ended at 4:30 p.m., while Mule arrived at work around noon expecting to work a twelve-hour shift. On the day of the accident, Lockheed Martin held a company picnic off its premises. Employees were permitted to leave work during their regular shift to attend the picnic. Mule left to attend the picnic at 3 p.m. and returned to work at 5 p.m. Mattson left work at 1 p.m. to attend the picnic with the understanding that he would be paid for the balance of his shift. He was not required to return to work.
When Mattson left the picnic, he decided to return to Lockheed Martin to shower and change his clothes at the company's gymnasium facilities. He then intended to join other company employees, who also had attended the picnic, at a local tavern. At about 8 p.m., Mule took a meal break and drove out of the company lot to a local convenience store. Around that same time, Mattson had finished his shower and went to his car. Mule returned from the store and decided to park his car closer to the guard station. As Mattson was driving his vehicle through the parking lot, he collided with Mule's car. Mattson's car was uninsured at the time of the accident. Mule did not file a formal workers' compensation claim. Mule indicated in a deposition that he called Lockheed Martin's workers' compensation carrier to report the accident and was told that it was not a compensable claim. His application for personal injury protection (PIP) benefits was approved and paid by defendant.
Defendant argues that Mule's UM claim is barred by the provisions of N.J.S.A. 34:15-8 because Mule's injuries are compensable under N.J.S.A. 34:15-1 *fn1 and because the accident occurred in the employer's parking lot between co-employees. We disagree. N.J.S.A. 34:15-8 provides, in pertinent part:
If an injury . . . 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.
The status of being "in the same employ," to trigger the bar of §8, refers to the alleged tortfeasor's role at the time and place of the accident, and not to the mere chance that although in the course of entirely personal conduct, he also happens to be an employee of the injured party's employer. Manole v. Carvellas, 229 N.J. Super. 138 (App. Div. 1988). The fact that a car accident occurs on the employer's property between two co- employees, and that injury to the employee who is in the course of his employment at the time is compensable under the Workers' Compensation Act, does not automatically mean that the injured employee's common law claim against the other is barred by § 8. The critical question is whether both employees were in the course of their employment at the time the accident occurred. If not, the fact that both motorists were Lockheed Martin employees is without legal significance. Id. at 143.
There is no question that Mule was in the course of his employment and that the accident arose out of that employment, thereby qualifying him for benefits. See N.J.S.A. 34:15-1. He was returning from a meal break in the midst of his shift, which did not end until midnight. But the focus here must be on the other driver, Mattson, and it is equally clear that Mattson was not in the course of his employment when the accident occurred. His workday ended at 4:30 p.m. His decision to return to use the employer's shower facilities was unrelated to his employment duties and served his personal interests exclusively.
Defendant contends that under the provisions of N.J.S.A. 34:15-36, as interpreted by the Supreme Court in Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988), Mattson was within the scope of his employment because he was on the employer's property to utilize the employer's facilities. We infer, as defendant suggests, that access to the gymnasium shower was limited to employees of Lockheed Martin and its use considered a benefit incident to employment. In light of defendant's contention, we will expand upon our conclusion that Mattson was not "in the same employ" as Mule at the time of the accident. For that purpose, we deem it useful to consider whether, had Mattson been injured, the accident would have been one "arising out of and in the course of his employment," entitling him to workers' compensation benefits.
N.J.S.A. 34:15-36 provides, in pertinent part, that "[e]mployment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment . . . ." In Livingstone, Justice Stein, for the majority, framed the issue to be decided as follows:
The narrow question before us, and that which divided the Appellate Division, is whether an award of compensation benefits is precluded by virtue of the statutory bar on coverage for injuries occurring in 'areas not under the control of the employer.' Put another way, in order to ascertain whether petitioner was injured after she had 'arrive[d] at the employer's place of employment to report for work,' and thus, 'in the course of employment,' we must decide whether the area of the mall lot where petitioner was directed to park can be considered as having been under the control of the appellant within the meaning of the statute. (Emphasis added.) [Livingstone v. Abraham & Straus, Inc., supra, 111 N.J. at 103.] Here, however, the accident occurred well beyond the end of Mattson's workday. His presence in the parking lot was not connected to any employment purpose nor did it serve, directly or indirectly, the interests of the employer. His decision to return to his place of employment at the end of his workday was motivated exclusively by personal reasons. Without a causal connection ...