SAMUEL MACCARONE NANCY MACCARONE v. STATE OF NEW JERSEY STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS STATE OF NEW JERSEY DEPARTMENT OF TREASURY DIVISION OF RISK MANAGEMENT (2011)

Plaintiff Samuel Maccarone, a corrections officer employed by the Department of Corrections, was participating in the transport of an inmate in a State-owned vehicle when a phantom vehicle caused the State vehicle to leave the roadway and crash.   Plaintiff was seriously injured and lost his right arm as a result of his injuries.   It is undisputed that plaintiff filed for workers' compensation benefits, a workers' compensation file was opened, and the State has paid his medical expenses, which are significant.

The workers' compensation system is “an historic ‘trade-off’ whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic entitlement to benefits for work-related injuries.”  Charles Beseler Co. v. O'Gorman & Young, Inc., 188 N.J. 542, 546 (2006) (quoting Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605 (2002));  Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985).   Except in cases of intentional wrong, the Workers' Compensation Act (“the Act”), N.J.S.A. 34:15–1 to –128, provides the exclusive remedy against an employer for employees injured in a work-related incident.   See N.J.S.A. 34:15–8;  Beseler, supra, 188 N.J. at 546;  Kibler v. Roxbury Bd. of Educ., 392 N.J.Super. 45, 47 (App.Div.), certif. denied, 192 N.J. 292 (2007).   Our courts have consistently enforced the Act's exclusivity provision, see, e.g., Tomeo v. Thomas Whitesell Constr.   Co., 176 N.J. 366 (2003);  Kibler, supra, 392 N.J.Super. at 52–53, even when an employee's efforts to obtain benefits under the Act have been repeatedly thwarted by the employer's agent, e.g., Flick v. PMA Ins. Co., 394 N.J.Super. 605, 608 (App.Div.2007).

Although plaintiff availed himself of this exclusive remedy, he sought to obtain additional relief from the State by filing an uninsured motorist (UM) claim for his injuries.   The Division of Risk Management of the Treasury Department denied the claim, noting the State is exempt from the provisions of the Motor Vehicle Security–Responsibility Law (Responsibility Law), N.J.S.A. 39:6–23 to –60, and does not carry uninsured motorist, underinsured motorist or personal injury protection (PIP) coverage.

Plaintiff appealed this determination to the Treasurer and also filed an action in lieu of prerogative writs in the Law Division.   The Acting Director of the Department referred plaintiff's counsel to the deputy attorney general assigned to the Law Division matter without issuing a final agency decision but noted the exclusivity of the workers compensation remedy in the letter to counsel.

In lieu of filing an answer, the State filed a motion to dismiss the complaint.   The court transferred the matter to the Appellate Division pursuant to R. 2:2–3(a) without addressing the merits of the case.

Rule 2:2–3(a)(2) provides that appeals may be taken to the Appellate Division as of right from “final decisions or actions of any state administrative agency or officer, ․ except that review pursuant to this subparagraph shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise[.]”  (Emphasis added.)   Because plaintiff did not exhaust his right of review before the administrative agency, the denial by the Division of Risk Management is interlocutory and not before us as of right.   Nonetheless, because the issue to be decided is purely one of law and the record is adequate to terminate the dispute without the need for further litigation, we elect to exercise our original jurisdiction pursuant to R. 2:10–5.   See Vas v. Roberts, 418 N.J.Super. 509, 523–24 (App.Div.2011);  Pressler & Verniero, Current N.J. Court Rules, comment 3.2.2 on R. 2:2–3 (2011).

In this appeal, plaintiff argues the State is subject to the requirement in N.J.S.A. 39:6A–14 to maintain compulsory UM coverage and must provide him with a minimum of $250,000 in benefits.   In reply to the State's brief, plaintiff argues his claim is not subject to either the workers' compensation bar or to the requirements of the Tort Claims Act, N.J.S.A. 59:1–1 to 12–3.   We disagree and, after careful review of the issues raised, the briefs and arguments of counsel, conclude that none of plaintiff's arguments have merit as workers' compensation was the exclusive remedy available to plaintiff.   We add only the following comments regarding plaintiff's UM claim against the State and his argument that the State is obligated to maintain such coverage.

In Ross v. Transport of New Jersey, 114 N.J. 132 (1989), the Supreme Court addressed the question whether a public entity “is subject to the provisions of the Motor Vehicle Security–Responsibility Law, N.J.S.A. 39:6–23 to –60 ․ which would obligate it to carry uninsured motor vehicle insurance coverage.”  Id. at 135.   The Responsibility Law contains an exemption for public entities from the compulsory insurance requirements imposed on private owners,¹ which the Court concluded was applicable to the public entity.   Id. at 141–42.   Plaintiff argues that Ross is distinguishable because it was decided before an amendment to the Responsibility Law in 1987.

When a public entity has not availed itself of the opportunity to self-insure or purchase an insurance policy, it falls within the exemption of N.J.S.A. 39:6–54(a), which provides in pertinent part:

This act shall not apply with respect to any motor vehicle owned by the United States, this State or any political subdivision of this State or any municipality therein;  nor with respect to any motor vehicle which is subject to the requirements of law requiring insurance or other security on certain types of vehicles, other than the requirements of P.L.1972, c. 70 (C. 39:6A–1 et seq.) or P.L.1972, c. 197 (C. 39:6B–1 et seq.).

[Emphasis added.]

The 1987 amendment, which serves as the basis for plaintiff's argument that Ross is distinguishable, added the last clause of section (a), underlined above.   Plaintiff contends the amendment “effectively removed the State's exemption from the compulsory UM and other motor vehicle insurance mandates of N.J.S.A. 39:6A and N.J.S.A. 39:6B.” We disagree.

When interpreting a statute, the terms used must be given their ordinary and accepted meaning guided by the goal of effectuating the Legislature's purpose in enacting the statute.  State v. Shelley, 205 N.J. 320, 323 (2011).   The use of a semicolon to separate clauses or subsections in a statute makes them disjunctive in nature.  State v. Smith, 262 N.J.Super. 487, 505–06 (App.Div.), certif. denied, 134 N.J. 476 (1993).

In Morella v. Grand Union/New Jersey Self–Insurers Guar. Assoc., 391 N.J.Super.   231 (App.Div.2007), aff'd 193 N.J. 350 (2008), we described the following principles of statutory construction:

A general rule of statutory construction is that a modifying phrase applies to the last antecedent phrase, absent contrary intent.   However, the use of a “comma” to separate a modifier from an antecedent phrase indicates an intent to apply the modifier to all previous antecedent phrases.   Here, we are confronted with a “semicolon” after the first antecedent phrase, and a “comma” after the second antecedent phrase and before the modifying phrase.   A “semicolon” is a punctuation mark used to denote a degree of separation greater than the comma but less than the period.   Where a semicolon is used to separate two antecedent phrases, the application of the modifying phrase to those antecedents is affected.   A semicolon in an antecedent phrase is commonly interpreted to separate that phrase from a subsequent modifying phrase.

[Id. at 240–41(internal citations omitted).]

Here, the Legislature used a semicolon to separate two classes of motor vehicles in N.J.S.A. 39:6–54, those “owned by the United States, this State or any political subdivision of this State or any municipality therein” and those “subject to the requirements of law requiring insurance or other security on certain types of vehicles[.]”  Therefore, like the court in Morella, we are confronted with a statute in which there is “a ‘semicolon’ after the first antecedent phrase, and a ‘comma’ after the second antecedent phrase and before the modifying phrase.”  Id. at 241.   The use of the semicolon indicates an intention on the part of the Legislature to separate the first group of vehicles, those owned by federal, state or municipal governments, from the modifying clause “other than the requirements of P.L.1972, c. 70 (C. 39:6A–1 et seq.) or P.L.1972, c. 197 (C. 39:6B–1 et seq.).”   Prior to this amendment, the second exemption was overly broad, exempting nearly all vehicles from the compulsory insurance requirements as a result of the enactment of N.J.S.A. 39:6A–1 to –34 and N.J.S.A. 39:6B–1 to –3 subsequent to N.J.S.A. 39:6–54.   The amendment acted to limit the second exemption to those vehicles covered by insurance requirements other than the No–Fault insurance scheme and Compulsory Insurance Law. The amendment therefore clarified the exemption provided for vehicles otherwise required to carry insurance.

Principles of statutory construction therefore mandate a reading of the statute that preserves the exemption for public entity-owned vehicles from New Jersey's No–Fault insurance scheme or the Compulsory Insurance Law. Our conclusion is consistent with both the Legislature's decision to limit public entity liability pursuant to the Tort Claims Act, see Ross, supra, 114 N.J. at 146, and with our courts' continuing reliance upon Ross as supporting the proposition that a public entity which has not chosen to procure insurance or provide self-insurance is exempt from providing UM coverage.²  See N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 336–37 (2004);  Prudential Prop. & Cas. Ins. Co. v. Monmouth County Mun. Joint Ins. Fund, 141 N.J. 235, 241–44 (1995);  Downey v. City of Elizabeth, 273 N.J.Super. 335, 338 n.1 (App.Div.1994).

Affirmed.

FOOTNOTES

FN1. N.J.S.A. 39:6B–1 to –3 (“Compulsory Insurance Law”) requires owners of motor vehicles registered or principally garaged in the state to maintain motor vehicle liability insurance coverage for at least the minimum amount statutorily established.   The New Jersey Automobile Reparation Reform Act (“No Fault Act”), N.J.S.A. 39:6A–1 to –20, further mandates that every liability policy insuring automobiles shall include “no fault” coverage, N.J.S.A. 39:6A–4, and uninsured motorist (“UM”) coverage, N.J.S.A. 39:6A–14..  FN1. N.J.S.A. 39:6B–1 to –3 (“Compulsory Insurance Law”) requires owners of motor vehicles registered or principally garaged in the state to maintain motor vehicle liability insurance coverage for at least the minimum amount statutorily established.   The New Jersey Automobile Reparation Reform Act (“No Fault Act”), N.J.S.A. 39:6A–1 to –20, further mandates that every liability policy insuring automobiles shall include “no fault” coverage, N.J.S.A. 39:6A–4, and uninsured motorist (“UM”) coverage, N.J.S.A. 39:6A–14.

FN2. Although a public entity that has chosen to self-insure is not exempt from the requirement of providing UM coverage, see Ross, supra, 114 N.J. at 142–44, N.J.S.A. 39:6–54, the State has not availed itself of the ability to self-insure and plaintiff's reliance on Christy v. City of Newark, 102 N.J. 598 (1986) is therefore misplaced..  FN2. Although a public entity that has chosen to self-insure is not exempt from the requirement of providing UM coverage, see Ross, supra, 114 N.J. at 142–44, N.J.S.A. 39:6–54, the State has not availed itself of the ability to self-insure and plaintiff's reliance on Christy v. City of Newark, 102 N.J. 598 (1986) is therefore misplaced.

PER CURIAM