Opinion
DOCKET NO. A-5423-13T2 DOCKET NO. A-5609-13T2
06-20-2016
DEBORAH ANDERSON, Plaintiff-Appellant, v. TARANCE BRYANT, Defendant, and CITY OF JERSEY CITY, and JERSEY CITY POLICE DEPARTMENT, Defendants-Respondents. DEBORAH ANDERSON, Plaintiff, v. TARANCE BRYANT, Defendant-Respondent, and CITY OF JERSEY CITY, and JERSEY CITY POLICE DEPARTMENT, Defendants-Appellants.
Michael Confusione argued the cause for appellant in A-5423-13 (Hegge & Confusione, LLC, and Law Offices of Vlasac & Shmaruk, attorneys; Mr. Confusione and John M. Vlasac, Jr., on the brief). Stevie D. Chambers, Assistant Corporation Counsel, argued the cause for respondents in A-5423-13 (Jeremy Farrell, Corporation Counsel, attorney; Mr. Chambers, on the brief). Michael Dougherty, Assistant Corporation Counsel, argued the cause for appellants in A-5609-13 (Jeremy Farrell, Corporation Counsel, attorney; Mr. Dougherty, on the brief). Walter F. Kawalec, III, argued the cause for respondent in A-5609-13 (Marshall Dennehey Warner Coleman & Goggin, attorneys; George P. Helfrich, Jr., and Mr. Kawalec, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1551-10. Michael Confusione argued the cause for appellant in A-5423-13 (Hegge & Confusione, LLC, and Law Offices of Vlasac & Shmaruk, attorneys; Mr. Confusione and John M. Vlasac, Jr., on the brief). Stevie D. Chambers, Assistant Corporation Counsel, argued the cause for respondents in A-5423-13 (Jeremy Farrell, Corporation Counsel, attorney; Mr. Chambers, on the brief). Michael Dougherty, Assistant Corporation Counsel, argued the cause for appellants in A-5609-13 (Jeremy Farrell, Corporation Counsel, attorney; Mr. Dougherty, on the brief). Walter F. Kawalec, III, argued the cause for respondent in A-5609-13 (Marshall Dennehey Warner Coleman & Goggin, attorneys; George P. Helfrich, Jr., and Mr. Kawalec, on the brief). PER CURIAM
Plaintiff Deborah Anderson was involved in an accident with defendant Tarance Bryant. Bryant, a Jersey City police officer, was driving his personal vehicle. After initially suing only Bryant, plaintiff filed an amended complaint also suing the other defendants, the City of Jersey City and the Jersey City Police Department (collectively Jersey City). Plaintiff later settled with Bryant.
In Appeal No. A-5609-13, Jersey City appeals from orders filed January 2, 2012, May 6, 2013, November 12, 2013, January 31, 2014, and May 22, 2014, which ruled Jersey City was liable for Bryant's conduct under the doctrine of respondeat superior. In Appeal No. A-5423-13, plaintiff appeals from orders filed June 17, 2014, and July 15, 2014, dismissing her complaint against Jersey City because of her settlement with Bryant.
We listed their appeals back-to-back and now consolidate them for purposes of this opinion. We reverse in Jersey City's appeal, and affirm in plaintiff's appeal.
I.
Plaintiff's amended complaint alleged that Bryant was an agent of Jersey City, and was acting in the scope of his duties as a police officer. Bryant cross-claimed against Jersey City for contribution and indemnification. Jersey City denied those claims, and asserted it was immune under New Jersey's Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3.
Plaintiff also alleged that Jersey City negligently hired, trained, supervised, and monitored Bryant, but those claims were dismissed before trial.
Jersey City moved for summary judgment, arguing Bryant was not acting in the scope of his employment. On January 6, 2012, a judge denied the motion, finding genuine issues of material fact. On May 6, 2013, a second judge denied Jersey City's renewed cross-motion for summary judgment, and granted Bryant's motion for summary judgment, ruling that he had an agency and respondeat superior relationship with Jersey City. We denied Jersey City's motions for leave to file an interlocutory appeal. Based on the second judge's order, a third judge on November 22, 2013, ordered Jersey City to indemnify Bryant and defend him by compensating his existing counsel.
A liability-only trial was held before a fourth judge in December 2013. The jury found that plaintiff was 35% negligent, that Bryant and the City were 65% negligent, and that their negligence was the proximate cause of the accident. The third judge memorialized the jury's verdict in a December 23, 2013 order for judgment. Citing Bryant's trial testimony, Jersey City filed a motion for reconsideration of the May 6, 2013 order, which the second judge denied as untimely on January 31, 2014. We again denied Jersey City's motions for leave to file an interlocutory appeal.
Earlier, Bryant had obtained an order requiring his personal automobile insurance company to deposit into court his full $50,000 in liability coverage. On January 28, 2014, plaintiff settled with Bryant for $50,000. On May 22, 2014, based on the second judge's May 6, 2013 order, the fourth judge ordered Jersey City to reimburse Bryant's insurance company $50,000 and pay his counsel's $34,429.51 fees.
On June 17, 2014, the fourth judge granted the City's motion to dismiss plaintiff's complaint against the City because of plaintiff's settlement with Bryant. The judge similarly dismissed plaintiff's complaint against the Department on July 15, 2014. Plaintiff and Jersey City then appealed.
II.
The principal issue in Jersey City's appeal is whether Bryant was acting within the scope of his employment as a police officer in Jersey City at the time of the accident. The pertinent facts are contained in the exhibits, certifications, depositions, and trial testimony attached to the motions resulting in the May 6, 2013 and January 31, 2014 orders.
Bryant was a uniformed patrol officer assigned to the Department's East District. He normally drove his personal car between his home and work, and then used a police squad car while working on patrol. Officers leaving work often drove their own cars while still in uniform.
Bryant worked an overnight shift from 10:00 p.m. on October 26 to 6:00 a.m. on October 27, 2009. After the shift ended and Bryant went off-duty, he "hung out" at the district police station for a little while. It was common practice for him to hang out there and socialize if he had an off-duty job or a court appearance and did not want to go home in between.
Bryant then decided to go to a police substation at the Newport Mall for "off-duty job picks." This procedure is held every other Tuesday and attended by a large number of officers. Each officer picks a number, the number is called, and the officer can sign up for off-duty jobs such as directing traffic or providing security for private firms. Bryant testified: "It's not mandatory that you go to job picks. That's just the option to pick up extra work" and "get some extra money."
After going to off-duty job picks, Bryant left to go to Municipal Court. He had been subpoenaed to appear at Municipal Court at 9:00 a.m. on October 27. Such subpoenas usually involve testifying about issuing traffic tickets, or summonses for city ordinance violations. He did not leave in time to get to court by 9:00 a.m., and he received a call summoning him to court.
While off-duty, Bryant normally would take his personal car when he went to court, because he only drove a squad car if he was on duty. On this day, he was off-duty and drove his personal car to court. He wore his uniform because he had to wear it in court, but he wore a baseball jersey over his uniform to keep people from staring at him and looking at his personal vehicle.
At about 9:48 a.m., Bryant's vehicle and plaintiff's bicycle collided. Plaintiff fell to the ground in pain. Bryant said they should get an ambulance and an accident report. Using his personal cell phone, Bryant dialed 9-1-1 and called the police. Two patrol cars arrived, and Bryant told the officers what happened. Plaintiff was removed from the scene by ambulance.
Bryant made it to court by 10:24 a.m., and remained until shortly after 11:10 a.m. While in court he considered himself "off duty." His court overtime timecard for October 27 is marked "Off Duty."
Under Article 18(D) of the collective bargaining agreement (CBA) between the City and Bryant's union, "[t]he City shall pay all employees for appearances in Municipal Court" or other courts "on their own time, the rate of time and one-half, with a four (4) hour minimum" being paid even "if the appearance requires less time." Robert Kakoleski, the City's Assistant Business Administrator and the Department's Acting Police Director and Fiscal Officer for sixteen years, certified that: the four-hour period for court overtime pay begins when an officer arrives and clocks in at Municipal Court; if the officer does not arrive and clock in, he does not get paid; officers are not paid for traveling or for the travel time to Municipal Court; and officers are not reimbursed for mileage when they are driving their personal vehicles to Municipal Court.
III.
In denying Jersey City's renewed motion for summary judgment on May 6, 2013, the second judge considered Bryant's deposition, in which he testified he could not recall his activities between the end of his shift and his drive to court. After the liability trial, Jersey City moved for reconsideration of summary judgment. It attached Bryant's recent trial testimony, in which he recalled he had hung out socializing and then gone to off-duty job picks before driving to court. In the January 31, 2014 order, the second judge mistakenly refused to consider Bryant's trial testimony.
The judge ruled that Jersey City's January 15, 2014 motion for reconsideration was untimely pursuant to Rule 4:49-2. However, "the time prescriptions set forth in Rule 4:49-2 apply to final judgments and orders, not interlocutory orders, which are reviewable at any time" until final judgment. Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008). The May 6, 2013 order denying Jersey City's motion for summary judgment was interlocutory, as was the grant of summary judgment on Bryant's cross-claim. See Lombardi v. Masso, 207 N.J. 517, 534-36 (2011). Accordingly, the motion for reconsideration was not untimely. See DeAngelis v. Rose, 320 N.J. Super. 263, 271 (App. Div. 1999).
"Motions for reconsideration of interlocutory orders shall be determined pursuant to R. 4:42-2." R. 1:7-4(b). Such orders are "subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." R. 4:42-2; accord Lombardi, supra, 207 N.J. at 534. A court commits "an abuse of discretion when a decision is '"made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citations omitted).
The judge also found that Jersey City's motion for reconsideration was inappropriate because it was based on Bryant's trial testimony, which was "unknown to [the] court" and "non-existent" on May 6, 2013, when the judge had ruled on the summary judgment motions. The judge cited Zeiger v. Wilf, 333 N.J. Super. 258 (App. Div.), certif. denied, 165 N.J. 676 (2000), which ruled it was improper to use "trial evidence produced against certain defendants to undo a pretrial summary judgment dismissing the complaint as to a different defendant." Id. at 270. That was not the case here.
More importantly, our Supreme Court in Lombardi "disapproved" Zeiger's ruling, finding it "out of synchronicity with . . . well-established principles." Lombardi, supra, 207 N.J. at 536 n.5. The Court held a judge is not "confined in his reconsideration to the original summary judgment record," but may consider evidence from a subsequent hearing. Id. at 536-38.
Bryant's trial testimony was significantly different than his deposition testimony. Moreover, Jersey City could not have raised his trial testimony in its earlier summary judgment motion. As the Court stated in Lombardi, "the power to reconsider an interlocutory order should be exercised 'only for good cause shown and in the service of the ultimate goal of substantial justice.'" Id. at 536 (citation omitted). Under that standard, the second motion judge should have considered Bryant's trial testimony in the interests of justice.
As the January 31, 2014 order rested on impermissible bases, we reverse that order, and will consider Bryant's trial testimony in reviewing the summary judgment rulings concerning Bryant's claims against Jersey City.
Summary judgment must be granted if the court determines "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "A ruling on summary judgment is reviewed de novo." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). "We thus 'apply the same standard governing the trial court,' and do not defer to the trial court's . . . interpretation of 'the meaning of a statute or the common law.'" Ibid. (citation omitted). Similarly, whether the facts give rise to a finding of respondeat superior "is a question of law subject to de novo review." Luchejko v. City of Hoboken, 207 N.J. 191, 211 (2011). We must hew to that standard of review.
IV.
"Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). The TCA "incorporat[es] the doctrine of respondeat superior" in N.J.S.A. 59:2-2(a). Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 409 (1988); see also N.J.S.A. 59:2-2, official comment. "A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2(a).
Bryant was an employee of Jersey City. However, "[p]roof that the employer-employee relationship exists does not, in and of itself, create an inference that a given act done by the employee was within the scope of employment." Carter, supra, 175 N.J. at 410.
Bryant argues that his driving to Municipal Court was within the scope of his employment under the general precepts of the Restatement (Second) of Agency § 228(1) (1957):
Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master[.]Bryant cites Jersey City Code of Ordinances (Code) § 3-84(E), which requires the Department to "[p]rovide for the attendance of its members in courts as necessary for the prosecution and trial of persons charged with crimes and offenses[.]"
However, "an employee who is 'going to' or 'coming from' his or her place of employment is not considered to be acting within the scope of employment." Carter, supra, 175 N.J. at 412 (citing Mannes v. Healey, 306 N.J. Super. 351, 353-54 (App. Div. 1997)). "Two rationales exist to support the 'going and coming' rule. The first is that 'employment is suspended from the time the employee leaves the workplace until he or she returns.' That 'suspension' occurs because the element of 'control' [by the employer] is deemed lacking." Id. at 413 (quoting Mannes, supra, 306 N.J. Super. at 354). "The second is that the employer derives no benefit from the commute." Ibid. "In essence, when employees travel to or from work they are deemed to be acting in their own interests without constraints by the employer regarding the method or means of the commute." Ibid.
"There are, however, exceptions to the going and coming rule," which apply if "(1) the employee is engaged in a special errand or mission on the employer's behalf; (2) the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks; and (3) the employee is 'on-call.'" Id. at 413-14 (citing Mannes, supra, 306 N.J. Super. at 354-55).
Here, the facts fit "the general rule that an employee who is driving his or her personal vehicle to and from the employer's workplace is not within the scope of employment for the purpose of imposing vicarious liability on the employer." Id. at 412-13 (citing Mannes, supra, 306 N.J. Super. at 353-54).
Once Bryant's shift ended, his pay and his period of employment was suspended. He was free to go to his Jersey City home during the three hours before his court appearance. His employer did not control, and received no benefit from, his personal choices instead to hang out and socialize, or attend off-duty job picks. When Bryant drove to Municipal Court, his pay did not resume until he arrived and clocked in at that work location.
Contrary to Bryant's arguments, neither Code § 53-8(D) nor CBA Article 18 state that officers' overtime pay commences when they start traveling to court or at the time they are scheduled to be in court. Kakoleski certified, and Sergeant Nicola Flora testified, that the overtime pay commences when the officer clocks in at Municipal Court. Bryant proffered no evidence to the contrary.
None of the three exceptions to the going and coming rule applied here. First, Jersey City did not require that Bryant drive his "personal vehicle so that the vehicle may be used for work-related tasks." Id. at 414; cf. id. at 405 (finding an employee "was required by her employer to use her personal car on mandatory client visits"). Jersey City did not prevent Bryant from using "alternate means of transportation," such as a taxi, "walking, public transportation, or just being dropped off" by someone else. Id. at 416-17.
Second, Bryant was not "on-call." Although the accident occurred in Bryant's area of patrol, Bryant admitted he was not patrolling at the time of the accident, had no duty to patrol, and was off-duty. Moreover, "[t]he fact that an officer is subject to duty if a crime is witnessed does not mean that he or she is on duty" when traveling to or from work. Rogers v. Jordan, 339 N.J. Super. 581, 588 (App. Div. 2001).
Bryant notes that the officer in Rogers was "traveling home to attend to his son who was ill," and thus was going from work "for a purely personal purpose." Id. at 584, 590. However, the going and coming rule also applies to the employee's coming back to work after personal activities, such as Bryant's socializing and his trip to attend off-duty job picks. "The fact that [the employee] was on [his] way to the office to perform some work-related duty is not sufficient in and of itself to constitute a mission undertaken on [the employer's] behalf." Mannes, supra, 306 N.J. Super. at 355 (holding the going and coming rule applied to an employee driving to the workplace to get work-related forms).
Third, "[t]he 'special' aspect of the [special mission] exception requires, at the very least, that the employee perform an act outside the ordinary confines of his or her job description at the behest of the employer." Carter, supra, 175 N.J. at 418. "That standard simply does not apply in the circumstances here," ibid., because appearing in court to testify is not outside the normal confines of a police officer's job description. To the contrary, it is sufficiently normal that it is specifically described in the Code and compensated under the CBA.
Moreover, "[t]he special mission exception has fairly well-defined margins." Id. at 417.
"When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself."
[Ibid. (quoting Carberry v. State, Div. of State Police, 279 N.J. Super. 114, 120 (App. Div.) (citation omitted), certif. denied, 141 N.J. 94 (1995)).]
Here, Bryant's driving to Municipal Court, in the same city where he lived and in the same district where he patrolled while on duty, did not involve substantial time or trouble, or special inconvenience or hazard. Nor did it involve special urgency, as Bryant had three hours to make the short trip. See Carberry, supra, 279 N.J. Super. at 121-22 (finding a state trooper's drive to an employer-required medical exam was not a special mission because "there was no particular 'hazard' attending the trip" from Manahawkin to Brick Township).
Nonetheless, in the May 6, 2013 summary judgment rulings, the second judge found Bryant's trip to Municipal Court fell within the special mission exception. The judge's ruling was based in part on an incomplete and inaccurate factual record. The judge believed Bryant's shift ended at 8:00 a.m., but Bryant confirmed at his deposition and at trial that his shift ended at 6:00 a.m. The judge believed there was no evidence what Bryant did before leaving the district police station, but Bryant testified at trial that he hung out socializing. The judge also believed Bryant drove directly from the district police station toward Municipal Court, but Bryant testified at trial that he first went to off-duty job picks. The judge believed that Bryant did not do any personal activities between the end of his overnight shift and the beginning of his court overtime, but Bryant concedes that his socializing, and his trip to attend off-duty job picks, were personal activities. While the judge on May 6, 2013, did not have the benefit of Bryant's December 2013 trial testimony, that testimony was properly brought before the judge in Jersey City's motion for reconsideration.
Additionally, the judge inferred that Bryant was required to drive his personal car because he was not supposed to be driving a patrol car. However, there was no evidence Bryant was required to drive his personal car, and the unavailability of a patrol car was further indication that Bryant was off-duty. The judge also cited that Bryant was in uniform, but being in uniform is insufficient if the officer is off-duty. See Rogers, supra, 339 N.J. Super. at 584 (holding that an officer "was not within the scope of his employment at the time of the accident," even though he was in uniform and on his paid lunch break). Indeed, Bryant covered his uniform with a baseball jersey precisely because he was off-duty.
Simply put, Bryant was involved in an accident on his own car on his own time while traveling to work at the Municipal Court. Under the going and coming rule, he was not within the scope of his employment when the accident occurred. Thus, Jersey City is not liable for his negligence under the respondeat superior doctrine.
Accordingly, we reverse the May 6, 2013 rulings denying Jersey City's motion for summary judgment and granting Bryant's motion for summary judgment, and the resulting November 12, 2013 and May 22, 2014 orders requiring Jersey City to defend and indemnify Bryant. We remand to the Civil Part to order the repayment of any amounts paid by Jersey City as a result of those orders.
Given our ruling, we need not determine whether the first judge was correct in finding genuine issues of material fact in denying summary judgment on January 2, 2012.
V.
Bryant argues Jersey City is barred by judicial estoppel from arguing that he was not within the scope of his employment at the time of the accident. Under judicial estoppel, "[a] party who advances a position in earlier litigation that is accepted and permits the party to prevail in that litigation is barred from advocating a contrary position in subsequent litigation to the prejudice of the adverse party." Bhagat v. Bhagat, 217 N.J. 22, 36 (2014).
Initially, Jersey City moved for summary judgment arguing that Bryant was not in the course of his employment, but that argument was rejected in the May 6, 2013 order. Subsequently, in a post-trial motion, the City successfully made an alternative argument that, because Bryant had been found in the May 6, 2013 order to be operating his vehicle in the course of his employment, plaintiff's settlement with Bryant was a bar to suit against the City. See id. at 37.
Bryant argues that success bars the City from renewing its argument that he was not in the scope of his employment. However, "[j]udicial estoppel does not preclude inconsistent positions from being pleaded in the alternative." Cummings v. Bahr, 295 N.J. Super. 374, 386 (App. Div. 1996). The City could permissibly argue that Bryant was not acting in the scope of his employment, but if he was, settlement with Bryant barred suit.
Moreover, "[j]udicial estoppel is an extraordinary remedy" which "should be invoked only to prevent a miscarriage of justice." Bhagat, supra, 217 N.J. at 37. Bryant has not shown he was prejudiced because Jersey City took an alternative position against plaintiff. Indeed, Bryant's argument would create a miscarriage of justice, because it either would prevent Jersey City from raising a defense based on the adverse May 6, 2013 ruling, or preclude it from appealing that now-final ruling which it had twice sought to interlocutorily appeal. Allowing Jersey City's appeal poses "no threat to the integrity of the judicial system." Ali v. Rutgers, 166 N.J. 280, 288 (2000).
VI.
Plaintiff appeals the fourth judge's June 17, 2014 and July 15, 2014 orders dismissing her complaint against the City and the Department, respectively. The judge found that plaintiff's settlement with Bryant barred her claim against Jersey City under N.J.S.A. 59:9-6(b), which states:
Where a claimant has pursued his remedy against a public employee for a claim arising out of the act or omission of a public employee of a public entity, a judgment or settlement shall be a complete bar to suit against the entity in a claim arising from the same subject matter.N.J.S.A. 59:9-6(a) similarly states a judgment or settlement with a public employer bars suit against the public employee.
The plain language of N.J.S.A. 59:9-6(b) supports the judge's ruling. Plaintiff had pursued her remedy against Bryant for a claim arising out of his act or omission, obtained a liability verdict against him, and then a $50,000 settlement. Plaintiff also claimed that Bryant was negligent as a public employee, therefore making Jersey City, a public entity, liable under respondeat superior. Thus, the claims arose from the same subject matter. Therefore, plaintiff's settlement with Bryant was "a complete bar to suit against the entity." Ibid.
"In statutory interpretation, a court's role 'is to determine and effectuate the Legislature's intent.' The first step toward that end is to consider the plain language of the statute." State in Interest of K.O., 217 N.J. 83, 91 (2014) (citation omitted). "If the statute's plain language reveals the Legislature's intent, our interpretative mission should come to an end." Nicholas v. Mynster, 213 N.J. 463, 480 (2013). Here, the plain language reveals the Legislature's common-sense intent that a plaintiff who sues a public employee and settles may not pursue a suit against the public employer under respondeat superior for the employee's negligence.
Plaintiff claims that N.J.S.A. 59:9-6(b) only bars a "second or successive" suit, not pursuing a claim against the public employer in the "same" suit. She cites a commentator's view that N.J.S.A. 59:9-6(a) "provides that where a claimant has pursued his remedy against a public entity for an injury caused by a public employee, a judgment or settlement in that case bars a separate suit against the employee." Margolis & Novack, Claims Against Public Entities, comment to N.J.S.A. 59:9-6 (2016) (emphasis added). However, no such additional language appears in N.J.S.A. 59:9-6(b). Courts "'cannot, and should not, "rewrite a plainly-written enactment of the Legislature" or "write an additional qualification which the Legislature pointedly omitted."'" Voss v. Tranquilino, 206 N.J. 93, 99 (2011) (citations omitted).
As the judge noted, the federal courts have given a similar reading to a similar section of the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671 to 2680. The FTCA has long provided that a judgment against the government "shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." 28 U.S.C.A. § 2676. Federal courts have held that the complete bar applies to claims brought in the same action. See Manning v. United States, 546 F.3d 430, 433-34 (7th Cir. 2008), cert. denied, 558 U.S. 1011, 130 S. Ct. 552, 175 L. Ed. 2d 382 (2009). As here, "[a]n interpretation that [the section] was intended to bar only subsequent lawsuits by the same party arising out of the same set of facts does not find adequate support in the text." Id. at 434. "Courts must apply a statute as written when the language is plain and unambiguous." Id. at 433; accord Miah v. Ahmed, 179 N.J. 511, 520 (2004).
The two cases plaintiff emphasizes do not adopt her interpretation, even though both involved claims against public employer and employee in the same suit. Instead, they permitted suit for other reasons not present here. Gallegos v. State Bd. of Educ., 940 P.2d 468, 473 (N.M. Ct. App.) (finding settlement with local entities did not bar suit against different State entities under N.M. Stat. Ann. § 41-4-17(B)), cert. denied, 937 P.2d 76 (N.M. 1997); Williams v. Adams, 189 N.J. Super. 196, 198-200 (Law Div. 1983) (finding a plaintiff had not pursued his remedy against a public entity under N.J.S.A. 59:9-6(a) because he had not obtained "a 'substantive' determination," as his claim was dismissed for failure to comply with the TCA's notice requirements).
In any event, Williams' reasoning has been partially superseded by amendments to the TCA. See Serrano v. Gibson, 304 N.J. Super. 314, 315 (App. Div. 1997).
Plaintiff claims that the judge's reading of N.J.S.A. 59:9-6(b) would discourage settlement. That is inherent in the statute, which makes settlement with an employee a bar to suit against the employer, and vice versa. Moreover, the Legislature had good reason to require that claims against employee and employer should be resolved together where the plaintiff claims the employer is liable for the employee's acts under respondeat superior. Also, plaintiff has shown no necessity for settling separately with Bryant, who had already paid into court his policy's $50,000 liability limit.
Plaintiff notes the release she gave Bryant stated that she released "ONLY" her claims against Bryant, and that "[t]his release in no way is intended to release any claims I have against the city of Jersey City, your (Bryant) employer." However, Jersey City based its motion to dismiss not on the release but on N.J.S.A. 59:9-6(b). Plaintiff cannot defeat the plain meaning of the statute by drafting a release including contrary language which is not agreed to by the public entity.
Plaintiff does not dispute Jersey City's assertion that she settled with Bryant without its knowledge or participation. --------
Plaintiff argues that the City's motion to dismiss was untimely, that the City was required by Rule 4:42-2 to file "an application for reconsideration [which] shall be made to the trial judge who entered the order," and that the City's motion thus should have been decided by the third judge whose order recorded the jury's liability verdict. However, the City's motion to dismiss was filed promptly after the settlement became known, was authorized by N.J.S.A. 59:9-6 rather than Rule 4:42-2, and was decided by the fourth judge who presided over the trial.
Plaintiff's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
We affirm plaintiff's appeal in A-5423-13. We reverse and remand Jersey City's appeal in A-5609-13.
We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION