Opinion
DOCKET NO. A-1922-11T2
03-05-2013
MICHAEL DESMOND, Plaintiff-Appellant, v. TOWNSHIP OF PARSIPPANY-TROY HILLS, BRIAN SMITH, MORRIS COUNTY MUNICIPAL UTILITIES AUTHORITY, WASTE MANAGEMENT OF NEW JERSEY, INC., RYCO SALES AND MARKETING, INC., DIRECT MARKETING, P.C., INC., and KYM INDUSTRIES, INC., Defendants, and JAFFERJEE BROTHERS EXPORTS, LTD., Defendant-Respondent. TRAVELERS INDEMNITY COMPANY, Intervenor-Respondent.
Robert C. Neff, Jr. argued the cause for respondent Jafferjee Brothers Exports, Ltd. (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Mr. Neff, of counsel and on the brief). Joseph M. Gaul, Jr., argued the cause for respondent Travelers Indemnity Company (Gaul, Baratta & Rosello, L.L.C., attorneys; Mr. Gaul, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-920-06.
Patrick Collins argued the cause for appellant (Franzblau Dratch, attorneys; Stephen N. Dratch, on the brief).
Robert C. Neff, Jr. argued the cause for respondent Jafferjee Brothers Exports, Ltd. (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Mr. Neff, of counsel and on the brief).
Joseph M. Gaul, Jr., argued the cause for respondent Travelers Indemnity Company (Gaul, Baratta & Rosello, L.L.C., attorneys; Mr. Gaul, on the brief). PER CURIAM
Plaintiff Michael Desmond appeals from an order entered by the trial court on October 4, 2011, dismissing his claims against defendant Jafferjee Brothers Exports, Ltd. (Jafferjee), and an order dated December 15, 2011, denying his motion for reconsideration. Plaintiff also appeals from an order dated December 16, 2011, which declared that intervenor Travelers Insurance Company (Travelers) may enforce its workers' compensation lien against the monies plaintiff received in settlement of his claims against defendants Morris County Municipal Utilities Authority (MCMUA) and Waste Management of New Jersey, Inc. (WMNJ). We affirm in part, reverse in part and remand for further proceedings.
I.
Plaintiff was employed by East Coast Sanitation (East Coast) as a driver of sanitation trucks. On July 19, 2005, plaintiff picked up a large rectangular trash receptacle and drove it to the Parsippany-Troy Hills Transfer Station. After weighing in, plaintiff's truck was admitted to the "de-tarping" area, where he had to exit the truck and remove the tarp covering the receptacle. As he was doing so, the tarp strap broke. Plaintiff fell backwards. A moving truck in the adjacent lane ran over plaintiff and he sustained serious injuries.
Plaintiff filed a complaint in the Law Division, naming various defendants, including Jafferjee, MCMUA and WMNJ. He alleged, among other things, that the accident was caused by unsafe premises, the actions of an inattentive driver and an allegedly defective tarp strap manufactured by Jafferjee.
In 2007, Jafferjee filed a motion to dismiss the claims against it for lack of personal jurisdiction. The trial court denied the motion on September 14, 2007.
On October 7, 2010, plaintiff entered into a joint confidential settlement agreement with MCMUA and WMNJ, resolving his claims against those entities. In January 2011, plaintiff gave notice of the settlement to Travelers, the servicing administrator authorized to act on behalf of Continental Insurance Company of New Jersey (Continental), the workers' compensation carrier for plaintiff's employer. It appears that Travelers paid workers' compensation benefits to plaintiff in the amount of $927,907.03. In March 2011, Travelers moved to intervene in the action to enforce its lien for reimbursement of those benefits pursuant to the Workers' Compensation Act (WCA), specifically N.J.S.A. 34:15-40. The trial court granted the motion.
On July 19, 2011, Jafferjee filed another motion to dismiss, after the Supreme Court of the United States issued its decision in J. McIntyre Machinery, Ltd. v. Nicastro, ____ U.S. ____, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011). The trial court determined that New Jersey could not exercise personal jurisdiction over Jafferje because it had not purposely availed itself of the New Jersey market. The court entered an order dated October 4, 2011, dismissing plaintiff's claims against Jafferjee, but allowed plaintiff thirty days in which to take additional discovery on the jurisdictional issue and to seek reconsideration of the dismissal order.
On November 2, 2011, plaintiff filed a motion seeking a determination that Travelers' workers' compensation lien would not attach to or reduce the amount of his joint settlement with MCMUA and WMNJ. Plaintiff maintained that N.J.S.A. 59:9-2(e), a provision of the Tort Claims Act (TCA), bars any claim that Travelers may have for reimbursement from the monies recovered pursuant to the joint settlement. Travelers opposed the motion and filed a cross-motion to enforce its right to reimbursement under N.J.S.A. 34:15-40.
On November 4, 2011, plaintiff filed a motion for reconsideration of the court's October 4, 2011 order, dismissing his claims against Jafferjee. On November 18, 2011, after hearing oral argument, the court denied plaintiff's motion. The court memorialized its decision in an order entered on December 15, 2011.
Thereafter, the trial court considered plaintiffs' and Travelers' motions regarding enforcement of the workers' compensation lien. The court determined that all of the monies recovered by plaintiff as a result of the joint settlement of his claims with MCMUA and WMNJ are subject to reimbursement pursuant to N.J.S.A. 34:15-40. The court entered an order dated December 16, 2011, memorializing its determination. This appeal followed.
II.
Plaintiff argues that the trial court erred by concluding that New Jersey could not constitutionally exercise personal jurisdiction over Jafferje and adjudicate the claims in this case. We do not agree.
In Nicastro, the plaintiff injured his hand while using a metal-shearing machine manufactured by the defendant, J. McIntyre Machinery, Ltd. (J. McIntyre), a company that is incorporated and operates in Great Britain. J. McIntyre Machinery, Ltd., supra, ___ U.S. at ____, 131 S. Ct. at 2786, 180 L. Ed. 2d at 772. An independent distributor sold the machines in the United States, and the distributor was not under J. McIntyre's control. Id. at ____, 131 S. Ct. at 2786, 180 L. Ed. 2d at 773.
J. McIntyre's officials attended conventions to advertise its machines, but none of the conventions took place in New Jersey. Ibid. No more than four of McIntyre's machines, including the machine that injured the plaintiff, ended up in this State. Ibid.
Based on these facts, our Supreme Court determined that New Jersey's exercise of personal jurisdiction over J. McIntyre did not offend the Due Process Clause of the United States Constitution because the plaintiff was injured in this State and J. McIntyre knew or reasonably should have known that its products might be sold here. Ibid. The Court reversed the judgment of our Supreme Court. Id. at ___, 131 S. Ct. at 2791, 180 L. Ed. 2d at 778.
Justice Kennedy filed an opinion for four justices, noting that a state court may not subject a defendant to judgment unless the defendant has sufficient contacts with the forum so that the exercise of jurisdiction will not offend "'traditional notions of fair play and substantial justice.'" Id. at ____, 131 S. Ct. at 2787, 180 L. Ed. 2d at 774 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945)).
Justice Kennedy observed that generally, a sovereign's exercise of jurisdiction requires some act by which the defendant "'purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws[.]'" Id. at ____, 131 S. Ct. at 2787-88, 180 L. Ed. 2d at 774-75 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283, 1298 (1958)).
Justice Kennedy stated that there must be a substantial connection between the defendant and the forum in order to establish the requisite minimum contacts necessary for the forum to exercise personal jurisdiction over the defendant. Id. at ____, 131 S. Ct. at 2788, 180 L. Ed. 2d at 776. The defendant must engage in conduct that is "'purposefully directed toward the forum State.'" Ibid. (quoting Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112, 107 S. Ct. 1026, 1032 94 L. Ed. 2d 92, 104 1987)). The placement of a product in a stream of commerce, without more, is insufficient. Id. at ____, 131 S. Ct. at 2789, 180 L. Ed. 2d at 776.
Justice Kennedy noted that J. McIntyre had not engaged in conduct that was purposefully directed at New Jersey, observing that while J. McIntyre may have intended to serve the United States market, it had not "purposefully availed itself of the New Jersey market." Id. at ____, 131 S. Ct. at 2790, 180 L. Ed. 2d at 778. He added, "[a]t no time did [J. McIntyre] engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws." Id. at ____, 131 S. Ct. at 2791, 180 L. Ed. 2d at 778. Therefore, New Jersey did not have the power to adjudicate J. McIntyre's rights and liabilities. Ibid.
Justice Breyer filed a concurring opinion, in which Justice Alito joined. Justice Breyer wrote that a single, isolated sale of a machine, accompanied by efforts to market products nationwide, was insufficient to support New Jersey's exercise of personal jurisdiction over J. McIntyre. Id. at ____, 131 S. Ct. at 2792, 180 L. Ed. 2d at 779.
Justice Breyer stated that there had been no showing that J. McIntire regularly sold its products in New Jersey, or any showing that J. McIntire targeted the State with its "design, advertising, advice, marketing or anything else." Ibid. There also was no indication that potential New Jersey customers attended trade shows where J. McIntire marketed its products, or that J. McIntyre purposely availed itself of the privilege of engaging in activities in New Jersey. Id. at ____, 131 S. Ct. at 2792, 180 L. Ed. 2d at 780.
Justice Breyer noted that the plaintiff might have brought forth other facts, but, based on the limited factual record, New Jersey could not constitutionally exercise jurisdiction over J. McIntire. Ibid. Justice Breyer added that he did not believe the case warranted "broad pronouncements that refashion basic jurisdictional rules." Id. at ____, 131 S. Ct. at 2793, 180 L. Ed. 2d at 780. He emphasized, however, that our Supreme Court erred by finding jurisdiction merely because the defendant knew or reasonably should known that products distributed nationwide might lead to those products being sold in every state. Ibid.
Here, the trial court applied the principles discussed in Nicastro and concluded that New Jersey could not exercise jurisdiction over Jafferjee. In our view, the record supports the court's determination.
Jafferjee is a Sri Lankan company, which manufactured the alleged defective rubber tarp strap that plaintiff claimed was a cause of his injuries. Jafferjee has no office, factory or business location in New Jersey. No Jafferjee employee resides or works in New Jersey, and no Jafferjee employee has ever traveled to New Jersey to conduct business here. Jafferjee does not have a registered agent in New Jersey, and does not maintain an agent for service of process in New Jersey.
Jafferjee does not have any interest in real or personal property in New Jersey. It derives no income from business conducted here, and has not paid any taxes to this State. Jafferjee has not entered into any contracts in New Jersey. It maintains no telephone service, bank accounts or credit lines in this State. Jafferjee did not advertise its products in New Jersey. None of its buyers were located in New Jersey. It did not ship tarp straps or any other product to New Jersey.
Jafferjee sold the particular tarp strap involved in this matter to Direct Marketing, a Canadian company, for resale to Ryco Sales & Marketing, Inc. (Ryco), a corporation located in Oregon. Ryco sold the tarp strap to Kym Industries, Inc. (Kym), an Alabama corporation. Kym sold the strap to East Coast, plaintiff's employer. Jafferjee asserts it was not aware that the strap in question would be distributed in New Jersey.
We are satisfied that Jafferjee did not engage in activities in New Jersey which show that it intended to invoke the protection of New Jersey's laws. It did not purposely avail itself of the New Jersey market, or the privilege of engaging in activities in New Jersey. Therefore, the trial court correctly ruled that New Jersey could not constitutionally exercise jurisdiction over Jafferjee with regard to the claims asserted by plaintiff in this case.
Plaintiff argues, however, that there is sufficient evidence to support New Jersey's exercise of personal jurisdiction over Jafferjee. Plaintiff points out that Jafferjee has sold its tarp straps to Frank W. Winne & Son, Inc. (Winne), a company based in Philadelphia, Pennsylvania. Winne sells industrial supplies, including the tarp straps, to locations throughout the United States. Winne was licensed to do business in fifteen states, including New Jersey.
According to Winne's records, it purchased products from Jafferjee in the period from 1998 to 2005. In 2004, the purchases totaled $1,586,950, and in 2005, the purchases totaled $1,760,129. Winne sold Jafferjee's products, including the tarp straps, to customers in New Jersey. According to plaintiff, Winne has distributed thousands of the straps to New Jersey customers.
In our view, these facts are insufficient to support the exercise of personal jurisdiction over Jafferjee in this case. The fact that Jafferjee sold its products to a Philadelphia company, which distributed those products in other states, including New Jersey, is not evidence that Jafferjee purposefully availed itself of the New Jersey market.
There is no indication that Jafferjee asked Winne to target the New Jersey market. Indeed, Winne's Chief Financial Officer, Robert Adelizzi, testified at his deposition that Jafferjee never asked Winne to target the New Jersey market. The fact that Winne distributed tarp straps in New Jersey is not sufficient to show that Jafferjee purposefully availed itself of the opportunity to engage in business in New Jersey.
Moreover, Jafferjee initially sold the tarp strap involved in this case to a Canadian company, which sold it to a company in Oregon. The strap was then sold to an Alabama company, which later sold it to plaintiff's employer. There is no indication that Jafferjee purposely sought to avail itself the New Jersey market when it sold this particular product to the Canadian distributor.
Plaintiff also argues that, because five justices did not join Justice Kennedy's opinion in Nicastro, the governing principles are those set forth in Justice Breyer's concurring opinion. Plaintiff contends that Justice Breyer's opinion supports the exercise of personal jurisdiction over Jafferjee in the case.
Again, we disagree. Both opinions reach the conclusion that New Jersey could not exercise jurisdiction over J. McIntyre because the evidence failed to show that J. McIntyre had purposely availed itself of the New Jersey market. The record here supports the same conclusion.
Accordingly, we affirm the trial court's order of October 4, 2011, dismissing plaintiff's claims against Jafferjee for lack of personal jurisdiction, and the court's December 15, 2011 order denying plaintiff's motion for reconsideration.
III.
We turn to plaintiff's appeal from the trial court's order of December 16, 2011, which declared that Travelers was entitled to enforce its lien for workers' compensation benefits paid to plaintiff against the monies plaintiff received pursuant to the joint settlement with MCMUA and WMNJ. Plaintiff contends that Travelers should be precluded from enforcing its lien against any of those settlement proceeds.
The WCA provides in pertinent part that if a worker recovers damages from a third person who is liable for the worker's injuries, the compensation carrier is entitled to be reimbursed for the medical expenses and benefits paid to the injured worker as a result of those injuries. N.J.S.A. 34:15-40(b). The TCA provides, however, that
[i]f 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 . . . . 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.
[N.J.S.A. 59:9-2(e).]
As we stated in Serpa v. New Jersey Transit, 401 N.J. Super. 371, 381 (App. Div. 2008), N.J.S.A. 34:15-40 "does not apply to public entities or public employees." We observed that
[w]hen a judgment for money damages is entered against a public entity or public employee, the trial court must deduct from the damage award any amounts in the damage award that duplicate benefits plaintiff has received from other sources, other than from joint tortfeasors. Thus, the employer obtains no reimbursement for the workers' compensation benefits paid from defendant tortfeasors who are public employees or public entities. Rather, the public entity or public employee receives a credit for the workers' compensation payments. This reflects a recognition that profit-making insurance companies are in a better position to withstand losses which they contract for
than are the already economically burdened public entities.
[Id. at 380-81 (citations omitted).]
It is undisputed that Travelers paid plaintiff workers' compensation benefits of $927,907.03 for the injuries for which he sought damages in this case. It is also undisputed that plaintiff has entered into a joint settlement with MCMUA and WMNJ, which will provide plaintiff damages for those same injuries. N.J.S.A. 59:9-2(e) provides that the amount of the compensation benefits must be disclosed to the court and, to the extent those benefits duplicate the award against a public entity or employee, the benefits must be deducted from the award.
Plaintiff has not disclosed the amount, if any, that MCMUA contributed to the settlement. N.J.S.A. 59:9-2(e) makes clear that Travelers is not entitled to be reimbursed from the amount paid by MCMUA. In addition, MCMUA would not be entitled to a deduction from the amount it contributed to the settlement. Serpa, supra, 401 N.J. Super. at 381.
Furthermore, N.J.S.A. 34:15-40 allows Travelers to seek reimbursement of its compensation benefits from the monies plaintiff has recovered from WMNJ. Plaintiff argues that N.J.S.A. 59:9-2(e) should be interpreted as barring Travelers from seeking reimbursement from the monies plaintiff received from WMNJ in settlement of his claims. Plaintiff contends that monies received from a public contractor should be protected from such reimbursement claims to the same extent as monies received from public entities or employees.
In support of this argument, plaintiff relies upon Vanchieri v. New Jersey Sports & Exposition Authority, 104 N.J. 80, 86 (1986). In Vanchieri, the plaintiff was injured by other patrons while attending a game at Giants Stadium. Id. at 83-84. The plaintiff brought suit against the New Jersey Sports & Exposition Authority (Authority), as well as the private entity engaged to provide security at the Stadium. Id. at 84. The Court held that, while the security company was not entitled to immunity from tort claims, independent contractors "share to a limited extent the immunity of public entities with whom they contract." Id. at 85.
The Court stated that when a public entity provides its contractor with plans and specifications, the "contractor will not be held liable for work performed in accordance with those plans and specifications." Id. at 86. The Court said that, unless the public contractor is relieved of liability in these circumstances, the public entity's immunity from liability would become meaningless. Ibid. (citing Cobb v. Waddington, 154 N.J. Super. 11, 18 (App. Div. 1977), certif. denied, 76 N.J. 235 (1978); Sanner v. Ford Motor Co., 144 N.J. Super. 1, 9 (Law Div. 1976), aff'd, 154 N.J. Super. 407 (App. Div. 1977), certif. denied, 75 N.J. 616 (1978)). The Court stated that "[i]f contractors never shared government immunity, their costs of doing business would be higher and those higher costs would be passed on to the government entities hiring the contractors." Ibid.
The Court additionally stated that public contractor immunity was warranted based on "notions of fairness." Ibid. The Court noted that public contractors are bound to comply with specifications, as to which they have no control. Ibid. The Court reasoned, "[i]t would be fundamentally unfair to hold a contractor liable in that instance for injury caused by defective plans, at least in the absence of a blatant, obvious danger that the contractor should have brought to the attention of the public entity." Ibid. (citing Lydecker v. Freeholders of Passaic, 19 N.J.L. 622, 626-27 (E. & A. 1912)).
The Vanchieri Court determined that the Authority's security company had not established a basis for independent contractor immunity. Id. at 87-88. The Court noted that the company had not established that the Authority had provided it with plans and specifications for deployment of security personnel for the game at which the plaintiff was injured. Id. at 87.
The Court observed that the Authority had the power to specify how the company would carry out its security functions, but the record contained no proof that the Authority exercised that power for the game in question. Id. at 87. In addition, because the company did not produce the plans and specifications, the company could not show that it complied with those plans. Id. at 87-88.
We are convinced that N.J.S.A. 59:9-2(e) establishes a form of immunity that may extend to public contractors under the principles enunciated in Vanchieri. Here, the trial court reasoned that derivative immunity was not available to public contractors because N.J.S.A. 59:9-2(e) only refers to public entities and employees. In Vanchieri, the Court held that public contractors were entitled to the same immunities enjoyed by public entities and employee, despite the absence of specific language in the TCA granting such immunities. Vanchieri, supra, 104 N.J. at 85.
The Court extended the TCA immunities to public contractors because, if they did not share the immunities, their costs of doing business would be higher and they would pass those costs along to the governmental entities that hire them. Id. at 86. That same rationale supports the extension of N.J.S.A. 59:9-2(e) to public contractors. Otherwise, public contractors would be required to pay higher damage awards or agree to higher settlements to offset reimbursements for other sources of compensation the injured party may have received. The increased costs of doing business would eventually be passed along to the public entities.
Nevertheless, a public contractor is only permitted to enjoy derivative immunity "to a limited extent[.]" Vanchieri, supra, 104 N.J. at 85. A court must carefully scrutinize any such claim of immunity. Id. at 87. The immunity should not be "granted too freely" or absent circumstances that justify its application." Ibid. Furthermore, the party seeking the benefit of the immunity has the burden of establishing that it applies. Ibid.
Based on the factual record presented to the trial court thus far, we are not convinced plaintiff established that WMNJ was entitled to derivative immunity under Vanchieri. Although plaintiff presented the trial court with a copy of the contract between MCMUA and WMNJ, he did not submit the plans and specifications that governed WMNJ's operation of the facility. Thus, the record is insufficient to determine whether WMNJ was complying with MCMUA's plans and specifications when plaintiff was injured.
In this regard, we note that in its submission to the trial court, Travelers pointed out that plaintiff's claims against WMNJ were based in part on allegations that WMNJ failed to comply with MCMUA's plans and specifications. According to Travelers, the plans and specifications required WMNJ to employ a properly-trained traffic coordinator at the facility where plaintiff was injured, but the required traffic coordinator was not present when plaintiff was injured. The record is insufficient to determine whether WMNJ deviated from the requirements of the plans and specifications and whether such deviation was a proximate cause of plaintiff's injuries.
WMNJ's contract also required WMNJ to comply with applicable solid waste transfer regulations. Travelers asserted that the regulations prohibited the movement of any vehicle at a transfer station if a pedestrian was within ten feet of the vehicle. According to Travelers, discovery revealed that WMNJ did not communicate this requirement to others, including the driver of the truck that struck plaintiff. The record also is insufficient to determine whether WMNJ complied with the aforementioned regulations and whether such non-compliance was a proximate cause of plaintiff's injuries.
We additionally note that, when negotiating a personal injury settlement, a plaintiff's attorney ordinarily must know the amount that will be deducted from the settlement monies for any outstanding subrogation liens. Otherwise, neither the attorney nor the client can meaningfully evaluate the settlement. Therefore, when a personal injury settlement may be subject to a workers' compensation lien, we would expect the plaintiff's counsel to negotiate with the compensation carrier as well as with the tortfeasor in order to obtain a compromise of the lien, if possible, and a settlement of the tort claim.
If the lien is large, a plaintiff may demand a much larger settlement from the torfeasor, knowing that a substantial amount of the settlement proceeds will go to the compensation carrier. This reality underlies our courts' prior holdings that workers' compensation benefits are not to be repaid from settlements with public entities. Kramer v. Sony Corp. of Am., 201 N.J. Super. 314, 317 (App. Div. 1985). See also Serpa, supra, 401 N.J. Super. at 381.
That did not occur in this matter. Instead, plaintiff's attorney repeatedly asked Traveler's attorney to delay Travelers' involvement in the litigation, suggesting that the amounts recovered from other defendants may ultimately be sufficient to satisfy the compensation lien. Plaintiff's attorney then settled with the MCMUA and WMNJ without negotiating with Travelers and without disclosing how much each defendant had contributed to the settlement. Furthermore, plaintiff's attorney insisted that the settlement proceeds were not subject to the compensation lien but failed to make an adequate record on the issue of whether immunity principles applied to WMNJ's share of the settlement.
Under these circumstances, we conclude that the interests of justice were not served by allowing Travelers to enforce its compensation lien against the full amount of the MCMUA/WMNJ settlement. Accordingly, we remand this matter to the trial court for further proceedings to develop a record on the following issues: (1) what contributions MCMUA and WMNJ made to the joint settlement, and (2) whether the WMNJ's portion of the settlement is subject to immunity under the principles enunciated in Vanchieri.
If plaintiff fails to disclose the information on the first issue, the court may again enter an order permitting Travelers to enforce its lien against all of the settlement proceeds. If plaintiff discloses the amounts MCMUA and WMNJ contributed to the settlement, and plaintiff fails to carry his burden of proof on the second issue, the trial court shall enter an order permitting Travelers to enforce its lien against the amount WMNJ contributed to the settlement. Finally, if the court determines that WMNJ was entitled to derivative immunity, the court shall enter an order precluding Travelers from obtaining reimbursement from the settlement.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion. 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