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Notice provision of N.J.S.A. 34:15-40(f) requires insurance carrier to seek permission from injured worker before initiating third-party action on his behalf.

April 1, 2017
Hartford Underwriters Insurance Co. v. Salimente, Docket No. A-3687-14T2, 2017 N.J. Super. Unpub. LEXIS 275 (App. Div., decided Feb. 6, 2017)

Mr. Mishkoff, an employee of Credit Card Processing US, was involved in a work-related motor vehicle accident when his car was hit by Ms. Salimente. The workers’ compensation carrier for Credit Card Processing, Hartford, made medical and indemnity payments to and on behalf of Mishkoff. When Mishkoff failed to bring suit against Salimente, Hartford filed its own complaint against her on the last day of the two-year statute of limitations. Salimente moved to dismiss the complaint on the basis that the insurer failed to plead it had obtained Mishkoff’s permission to file the suit pursuant to N.J.S.A. 34:15-40(f). Concluding that Hartford had not given Mishkoff the required notice and the running of the statute made cure impossible, the judge dismissed Hartford’s claim. In reversing and remanding the judge’s dismissal, the Appellate Division cited Poetz v. Mix, 7 N.J. 436 (1951), in which the Supreme Court held that the ten-day written demand can be waived, especially where the carrier’s action preserves the subrogor’s right of action against the tortfeasor. The Appellate Division concluded that, as a filing on the last day of the limitations period suggests that Hartford was preserving not only its own subrogation claim but also Mishkoff’s right of action against Salimente, the plaintiff’s complaint should not have been dismissed before discovery could be had as to whether Mishkoff waived his right to the ten-day notice.

 

Case Law Alerts, 2nd Quarter, April 2017

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