Murray v. NicolMurray v. Nicol
This appeal and cross-appeal present questions of first impression. At issue is whether
The salient facts are not in dispute. Plaintiff instituted this action to recover damages for injuries sustained when the motor vehicle he was driving was struck by another operated by defendant Kari D. Nicol. The collision occurred at an intersection. Plaintiff‘s line of traffic was controlled by a stop sign which was obscured by a tree and other foliage planted and maintained by defendant Township of Union. In his complaint, plaintiff alleged that the concurrent negligence of Nicol and the Township constituted proximate causes of his injuries.
The accident occurred in the course of plaintiff‘s employment and he thus received substantial workers’ compensation benefits. Prior to trial, plaintiff settled with the Township in the amount of $20,000. The jury ultimately returned a verdict in plaintiff‘s favor in the sum of $55,000. In its verdict, the jury ascribed fault in the following manner:
Defendant Nicol 20%
Defendant Township of Union 70%
Plaintiff 10%
Immediately following the jury‘s determination, the trial court molded the verdict by first reducing the amount of the award by ten percent, which represented plaintiff‘s contributory negligence, and then deducting the amount of the settlement from the remainder. Defendant Nicol thereafter moved for reconsideration, arguing that a pro tanto reduction is mandated by
I.
In the principal appeal, plaintiff asserts that the trial court incorrectly narrowed the reach of the statutory prescription embracing the pro tanto rule, contrаry to the clearly expressed intent of the Legislature. It is argued that the legislative objective was to accord an injured party the benefit of his bargain with the settling tortfeasor and encourage amicable adjustment of claims through settlements. We agree.
The pro tanto rule is set forth in
Prior to adoption of the Comparative Negligence Law (
In Rogers v. Spady, 147 N.J. Super. 274 (App.Div. 1977), we construed
Contributory negligence shall not bar recovery in an action by any party or his legal representative to recover damages to the extent permitted under this act if such negligence was not greater than the negligence of the party against whom recovery is sought, but any damages sustained shall be diminished by the percentage of negligencе attributable to the person recovering. In all negligence actions in which the question of liability is in dispute, the trier of fact shall make the following as findings of fact:
a. The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party‘s damages to the extent permitted under this act.
b. The extent, in the form of a percentage, of each party‘s negligence. The percentage of negligence of each party shall be based on 100% and the total of all percentages of negligence of all the parties to a suit shall be 100%.
c. The judge shall mold the judgment from the findings of fact made by the trier of fact in accordance with the provisions of this act.
Conspicuous in its absence is any provision similar to
We note that our construction of the statute is bolstered by the comments annexed to this section of the Tort Claims Act. Such statements and comments may be considered in determining legislative intent. See Law v. Newark Bd. of Ed., supra, 175 N.J. Super. at 35; Raybestos-Manhattan, Inc. v. Glaser, 144 N.J. Super. 152, 178-181 (Ch.Div. 1976), aff‘d 156 N.J. Super. 513 (App.Div. 1978); Polyard v. Terry, 148 N.J. Super. 202, 207 (Law Div. 1977), rev‘d on other grounds, 160 N.J. Super. 497 (App.Div. 1978), aff‘d 79 N.J. 547 (1979); Caldwell v. Township of Rochelle Park, 135 N.J. Super. 66, 74 (Law
Subparagraph (b) mandates that any settlement by a joint-tortfeasor in a suit involving a public entity or public employee shall be deducted pro tanto from any judgment against another joint tortfeasor. This provision changes the existing law which provides that when a joint tortfeasor settles with a claimant there will be a pro rata reduction of the judgment against the remaining tortfeasors. In other words, the plaintiff does not now recovеr the full amount of his judgment if he settles with a joint tortfeasor below his pro rata share of the judgment (to the extent of the difference).
The above provision would rectify this inequity and permit a plaintiff to recover from any non-settling tortfeasor the difference between the total amount of his judgment and the amount of any settlement he may have reached. In addition to more fairly and fully compensating an injured plaintiff, this provision will undoubtedly encourage settlements by all parties.
According to the comment, the pro tanto principle was designed to ameliorate the sometimes harsh result created by the pro rata rule of Theobold v. Angelos, supra, and has continued efficacy within the context of comparative negligence principles. Where, as here, the injured party makes a particularly poor bargain, because the settlement amount is less than that which could have been recovered against the settling party by virtue of the percentage of negligence found attributable to it, he is obviously benefited by application of the pro tanto rule. In the converse situation, where the settlement amount is in excess of the settling party‘s percentage share, the plaintiff loses the potential for enrichment beyond the loss actually suffered. In that context, however, there are sound reasons of public policy for denying a plaintiff recovery in excess of his actual damages at the expense of the taxpayer where the public entity is the non-settling party. Where a private person is the non-settling party, the plaintiff nеvertheless benefits because he has received the benefit of his bargain. In other words, the potential for enrichment beyond the loss suffered is offset by the potential for a greater loss if he makes a low settlement. In this respect, the Legislature sought to accommodate the competing interests involved. Whatever personal reservаtions we might harbor concerning the fairness and wisdom of the
Were we to construe the statute in accordance with defendant‘s argument, an injured party would be loath to enter into a settlement with a public entity or, at the very least, would harbor strong motivation to assume a strident bargaining position. In the event the settlement with the public entity proved less than its percentage of fault, the plaintiff would lose the difference. No similar constraint would tend to discourage a settlement with a private party, since, under the pro tanto rule, the low settlement amount would simply be deducted from the judgment entered against the public entity. In short, we are of the view that defendant‘s interpretation of the statute would tend to subvert the legislative purpose.
We recognize that the title of
II.
We find no merit in defendant‘s alternative argument that if the statute is applicable, the judgment debtor must receive the benefit of the deductions as prescribed by
If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee. [Emphasis added].
It is abundantly clear that to the extent
In a similar vein, we perceive no violation of due process or equal protection here. The exposure of public entities to a myriad of claims constitutes a compelling reason to treat them differently from private pаrties. Whatever unfairness results is outweighed by the public policy concerns sought to be vindicated.
III.
We find no merit in the contention advanced by defendant in her cross-appeal. At trial, defendant sought to present a witness whose name did not appear in answers to plaintiff‘s interrogatories. Although the individual‘s name was set forth in the police report, plaintiff claimed that he was prejudiced because he did not know defendant intended to call him as a witness. Following a lengthy colloquy, the trial court determined that defendant‘s failure to comply with applicable discovery rules precluded her from presenting the witness. According to the court, prejudice that would otherwise flow to plaintiff could not be obviated by a continuance. The court, therefore, barred defendant from presenting the witness. Defendant now argues that the court abused its discretion.
A countervailing consideration is the “need to instill firmness and meaning to the provisions of our discovery rules, thereby maintaining a consistent and рredictable sense of order....” Crews v. Garmoney, 141 N.J. Super. 93, 96 (App.Div. 1976). If our discovery rules are to have any meaningful impact upon our civil dockets, they must be enforced fairly. As we stated in Jansson v. Fairleigh Dickinson University, supra, we are not unmindful “of the perils and gravitational pull of the slippery slope wherein the efficacy of our rules is destroyed by the gradual cumulation of exceptions.” 198 N.J. Super. at 196. We now find that the hill has a precipice and we are most unwilling to take the fatal plunge.
IV.
Accordingly, the matter is remanded to the Law Division for modification of the judgment consistent with this opinion. In all other respects, the judgment is affirmed.