On appeal from Superior Court of New Jersey, Law Division, Camden County, L-272-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 2, 2008
Before Judges Payne and Alvarez.
Appellants, Dana Rusin and David Lodi, employees of the United States Postal Service who were injured when hit by a car driven by respondent, Christopher DiNapoli, appeal from a determination of a judge of the Law Division that DiNapoli was acting within the scope of his employment when the accident occurred, and thus he is immunized from suit under federal law. At the time of the accident, which occurred at midnight on February 3, 2004, Rusin and Lodi had clocked out, having completed one-half of their shifts, in order to take an Atlantic City casino bus trip that left from the Postal Service's employee parking lot. Rusin, with Lodi as a passenger, had just moved her car from one parking lot to another. Both then started to cross the two-lane roadway leading into the facility's parking areas. The accident took place after the two had crossed the roadway's ingress lane and while they were crossing the exit lane. The location of the accident was at a pedestrian walkway that crossed the roadway just outside of the parking lots' chain link fence and gates, some distance before the roadway joined the public road. The accident thus took place outside of the physical confines of the parking lot, but on Postal Service property. At the time of the accident, DiNapoli had also clocked out, having finished his shift in another part of the facility, and he was heading home. The accident appears to have been caused by DiNapoli's inability to see Rusin and Lodi as the result of frost build-up on DiNapoli's windshield, which he failed to remove before exiting the parking lot.
Following the accident, Rusin and Lodi applied for and were awarded temporary federal workers' compensation benefits.
Thereafter, they brought a civil tort action against DiNapoli seeking additional compensation for their injuries. DiNapoli, in turn, sought summary judgment, claiming immunity from suit pursuant to the immunity provisions of the Westfall Act*fn1 set forth at 28 U.S.C.A. § 2679(b)(1), which provide:
The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
Following oral argument, the motion judge denied DiNapoli's motion without prejudice, and he directed the parties to contact the United States Attorney's Office for its determination whether the United States was the proper defendant in the matter. See 28 U.S.C.A. § 2679(d)(1), which provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
By letter dated July 2, 2007, the parties were informed:
It is the position of the United States Attorney that Mr. DiNapoli was not acting within the scope of his USPS employment when the subject accident occurred, as that term is understood and applied under the pertinent provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1),*fn2 2679(b). Doughty v. United States Postal Service, 359 F. Supp. 2d 361, 365 (D.N.J. 2005); . . . ; Borawski v. Henderson, 265 F. Supp. 2d 475, 482 (D.N.J. 2003). Consequently, this office declines to certify scope of employment for Mr. DiNapoli in the above matter.
Following receipt of the government's letter, DiNapoli moved in this action, pursuant to 28 U.S.C.A. § 2679(d)(3),*fn3 for Superior Court certification of his status as within the scope of his employment, contrary to the determination of the U.S. Attorney and for summary judgment. Following additional argument before the motion judge, DiNapoli's motion was granted on the ground that, because the accident occurred while DiNapoli remained within the confines of the parking lot or the roadway accessing it, he was acting within the scope of his employment when the accident occurred and therefore was immunized from civil suit. In a subsequent order, the judge also dismissed with prejudice claims against Allstate New Jersey Insurance Company, a private auto carrier that had intervened in the action.
At issue on appeal is the applicability of "scope of employment" precedent in the context of immunizing a fellow employee from liability for an accident occurring on the employer's property after the employee has concluded his work and left the employer's ...