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Calalpa v. Dae Ryung Co.1/31/2003
reciate the plaintiff's desire to keep both awards but I do not find this to be legally permissible and as a result, the plaintiff's motion is denied. [Emphasis added.]
In its main appellate brief, plaintiff disagrees, contending:
THE WORKERS' COMPENSATION CARRIER IS NOT ENTITLED TO ANY REIMBURSEMENT OF ITS LIEN OUT OF THE RECOVERY IN THIS ACTION BECAUSE THE GOVERNING STATUTE, N.J.S. 34:15-40, APPLIES ONLY TO THIRD PARTY ACTIONS AND, BY ANY SENSIBLE ANALYSIS, THIS ACTION IS IN THE NATURE OF A FIRST PARTY ACTION.
The argument is that defendants are not "third person" tortfeasors within the scope of N.J.S.A. 34:15-40. The reply brief takes a somewhat different tack, contending:
POINT I: AS HAPPENED IN THE MOTION COURT, DEFENSE COUNSEL PERSISTS WITH AN ARGUMENT THAT EQUATES AN OFF-SETTING ANTI-DUPLICATION CREDIT WITH A WORKERS' COMPENSATION LIEN.
A. THERE IS A DISTINCTION BETWEEN A WORKERS' COMPENSATION LIEN AND AN OFF-SETTING ANTI-DUPLICATION CREDIT.
B. THE OFF-SETTING ANTI-DUPLICATION CREDIT WORKS DIFFERENTLY THAN A WORKERS' COMPENSATION LIEN.
C. THE MOTION COURT'S APPLICATION OF N.J.S. 34:15-40 WAS ILLOGICAL AND UNFAIR.
The reply brief recognizes that the statutory workers' compensation lien accords the employer's compensation carrier a dollar for dollar off-set and, thus, "does not require examination of whether an injured claimant has been made whole." See Utica Mut. Ins. v. Maran & Maran, 142 N.J. 609, 613 (1995); Frazier v. New Jersey Mfrs. Ins., 142 N.J. 590, 602 (1995).
Indeed, the lien attaches to the entire amount of third party proceeds and not just those monies which match the compensation benefits. DeLane ex rel. DeLane v. City of Newark, 343 N.J. Super. 225, 233-35 (App. Div. 2001). But plaintiff distinguishes this statutory lien from an "off-setting anti- duplication credit" which, he claims, is "an entirely different kettle of fish," appearing, as a creation of decisional law, in "at least four different scenarios." In this respect, the reply brief asserts:
First, an off-setting anti-duplication credit may appear in the familiar context of successive torts:
Prior to the adoption of the Comparative Negligence Act, the courts in New Jersey formulated a separate "credit" concept designed to avoid duplicating compensation in cases in which the injured party settled with one tortfeasor and then instituted separate litigation against a person whose subsequent negligence aggravated the initial tort. The subsequent aggravation in those cases typically occurred as a result of medical malpractice. The courts reasoned that the torts in those cases were "successive" rather than "joint," thus precluding a contribution credit under the Joint Tortfeasors Contribution Law. Nevertheless, the courts acknowledged the possibility that the plaintiff may have received partial or total compensation for the subsequent tort as a result of the settlement with the initial tortfeasor. Consequently, the courts ultimately required that the second tortfeasor receive what was in effect a pro tanto credit in the amount by which the first settlement exceeded the damages attributable to the settling party's tort. [Brian E. Mahoney, New Jersey Comparative Fault and Liability Apportionment Law (Gann 2002), sec. 14:8, pp. 344-345 (emphasis added, citations omitted).]
Second, an off-setting anti-duplication credit may appear in the context of "second- collision" (or "crashworthiness") cases which, in the appropriate circumstances, may warrant a "credit" to the defendant vehicle manufacturer to subtract duplicative damages recovered by a plaintiff from the negligen defendant
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