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Calalpa v. Dae Ryung Co.1/31/2003
s in an earlier action. Id. at 15:6-6, p. 437 and at 14:8, p. 348, discussing Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 346 (1984).
Third, an off-setting anti-duplication credit may be warranted in the unusual context of a wrongful life suit which was preceded by a wrongful birth suit. Moscatello v. UMDNJ, 342 N.J. Super. 351, 361-362 (App. Div.) [, certif. denied, 170 N.J. 207 (2001)] (contemplating a credit in a disabled child's wrongful life suit for amounts received by his parents in a settlement of earlier litigation based on a wrongful birth theory).
Fourth and finally, an off-setting anti- duplication credit is plainly what the New Jersey Supreme Court [in Millison] had in mind for an "intentional wrong" suit against an employer who had earlier paid workers' compensation.
These instances of "off-setting anti-duplication credit," plaintiff argues, "work different than a workers' compensation lien." The argument is that:
enforcement of a workers' compensation lien does not require examination of whether an injured claimant has been made whole. In contrast, however, by its nature, an off- setting anti-duplication credit analysis may require an examination of whether an injured claimant has been made whole. On the one hand, if the injured claimant has proceeded to verdict before a fact-finder and prevailed (and all the recoverable New Jersey damages components have been fully aired before the fact-finder), it stands to reason that the fact-finder's determination establishes the full measure of plaintiff's damages in the eyes of the law, and the defendant/judgment-debtor is entitled to a pro tanto (or dollar-for-dollar) reduction in liability in an amount equivalent to the workers' compensation benefits previously paid. The Court in Millison evidently contemplated that the off-setting credit would be subtracted from the ultimate findings of the "trier of fact" where plaintiff has "prevailed" and a "civil damage award" has been made.
On the other hand, if plaintiff has settled his Superior Court action, there is no assurance that plaintiff has been made whole and the direct subtraction of off- setting credits hardly serves to prevent a "double recovery" -- it may well unjustly exacerbate what is already an "under recovery." A settlement usually represents a compromise on both sides, with many variables, and does not necessarily "make whole" the injured claimant. Werner v. Latham, 332 N.J. Super. 76, 79, 84-85 (App. Div. 2000); O'Brien v. Two West Hanover Co., 350 N.J. Super. 441 (App. Div. 2002).
Thus, where there has been a settlement of an "intentional wrong" case against an employer, plaintiff's counsel is entitled to ask the motion court to determine that the settlement represents a substantial compromise, that there has not been a double recovery, and that NO off-setting anti-duplication credit is appropriate . . . .
In essence, where there is an employer intentional wrong tort litigation settlement, plaintiff asks us to treat the workers' compensation carrier's lien as an equitable lien, subject to such equitable considerations as whether plaintiff has yet been fully recompensed for his injuries and to credit the carrier with only so much of the tort settlement as reflects an excess. The result here would be that the carrier would have no lien against the tort settlement proceeds as plaintiff contends those proceeds, even when combined with his workers' compensation benefits, do not fully compensate him for his injuries. And, to be sure, we have in other contexts imposed similar equitable lien concepts. See Werner v. Latham, 332 N.J. Super. 76 (App. Div. 2001) (health benefits insurer's contractual lien upon tort set
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