JOHN A. AMENDOLIA, III VS. GREGORY J. REYES (L-1944-15, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2485-16T4

JOHN A. AMENDOLIA, III,

Plaintiff-Appellant,

v.

GREGORY J. REYES,

Defendant-Respondent.
_____________________________

Argued May 17, 2018 – Decided June 25, 2018

Before Judges Simonelli and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
1944-15.

Craig R. Fishman argued the cause for
appellant (Fishman & Fishman, LLC, attorneys;
Craig R. Fishman, on the brief).

Thomas P. Lihan, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Thomas P. Lihan, on the brief).

PER CURIAM

Plaintiff John A. Amendolia, III was on duty as a member of

the New Jersey National Guard when he sustained injuries while a
passenger in a New Jersey State Police vehicle. Defendant Gregory

J. Reyes operated the vehicle while on duty and in the course of

his employment as a New Jersey State Trooper.

Plaintiff sought compensation for his injuries under the

Military Compensation Law (MCL), N.J.S.A. 38A:13-1 to -13.

N.J.S.A. 38A:13-1 provides that a militia member injured in the

line of duty is entitled to the same benefits provided in the

Workers' Compensation Act (WCA), N.J.S.A. 34:15-7 to -22.

Plaintiff filed a workers' compensation claim petition against the

National Guard with the New Jersey Division of Workers'

Compensation.1 In a July 15, 2015 order approving settlement,

plaintiff was found to be thirty-five percent permanently

partially totally disabled and awarded $82,530 in disability

benefits.

After receiving his award, plaintiff filed a negligence

action against defendant. In granting summary judgment to

defendant, the motion judge found plaintiff's action was barred

under N.J.S.A. 38A:13-1.2, which provides as follows:

Any person who becomes a member of the
organized militia of the State of New Jersey
shall be deemed to have surrendered his right
to any other method, form or amount of
compensation or determination thereof from the

1
N.J.S.A. 38A:13-4 permits the Adjutant General to refer an
injured militia member's claim to the New Jersey Division of
Workers' Compensation.

2 A-2485-16T4
 State or the organized militia, other than as
provided in this chapter for any injury or
death occurring to him in line of duty. Such
entry into the militia shall bind the member's
personal representative, surviving spouse and
next of kin, as well as the State of New Jersey
and the organized militia.

Neither the State, the organized militia nor
any member of the organized militia shall be
liable to anyone at common law or otherwise
for an injury or death compensable under this
chapter, including any injury or death that
results from an act or omission occurring
while the member was in the same service of
the organized militia as the person whose
actions caused that injury or death, except
for injury or death caused by an intentionally
wrongful act of a comember.

[(Emphasis added).]

The judge determined that plaintiff received compensation for his

injuries under the MCL, and the State was immune from liability

under N.J.S.A. 38A:13-1.2. Having found the State was immune, the

judge held that plaintiff's action against defendant was barred

by N.J.S.A. 59:3-1(c) of the New Jersey Tort Claims Act (TCA),

which provides that "[a] public employee is not liable for an

injury where a public entity is immune from liability for that

injury."

On appeal, plaintiff argues that in enacting the MCL, the

Legislature did not include public employees, such as defendant,

in the class protected from suit, but rather, limited the class

to members of the militia. Plaintiff concludes the State is not

3 A-2485-16T4
entitled to immunity under N.J.S.A. 38A:13-1.2 because defendant

was not a militia member.

Plaintiff also argues that N.J.S.A. 59:3-1(c) does not apply

because N.J.S.A. 38A:13-1.2 removed the State's immunity by

requiring it to compensate militia members injured in the line of

duty. Plaintiff concludes that absent the immunity, the State is

liable for defendant's negligence under N.J.S.A. 59:3-1(a)2 and

N.J.S.A. 59:2-2(a).3

Our charge here is to interpret a statute. In performing

that task, our review is de novo with no deference accorded the

trial court's interpretative conclusions. Aronberg v. Tolbert,

207 N.J. 587, 597 (2011) (citation omitted).

"The Legislature's intent is the paramount goal when

interpreting a statute[.]" DiProspero v. Penn, 183 N.J. 477, 492

(2005). As our Supreme Court has instructed:

To discern the Legislature's intent, courts
first turn to the plain language of the
statute in question. In reading the language
used by the Legislature, the court will give
words their ordinary meaning absent any

2
N.J.S.A. 59:3-1(a) provides that "[e]xcept as otherwise provided
by this act, a public employee is liable for injury caused by this
act or omission to the same extent as a private person."
3
N.J.S.A. 59:2-2(a) provides that "[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."

4 A-2485-16T4
 direction from the Legislature to the
contrary. "If the plain language leads to a
clear and unambiguous result, then [the]
interpretive process is over."

[TAC Assocs. v. N.J. Dep't of Envtl. Prot.,
202 N.J. 533, 540-41 (2010) (alteration in
original) (citations omitted).]

See also N.J.S.A. 1:1-1.

The plain language of N.J.S.A. 38A:13-1.2 clearly and

unambiguously provides that the MCL is the exclusive remedy for a

militia member injured in the line of duty and the State is immune

"for an injury . . . compensable under [the MCL], including any

injury . . . that results from an act or omission" of another

militia member. The term "include" is a "word[] of enlargement

and not of limitation and . . . examples specified thereafter are

merely illustrative." Jackson v. Concord Co., 54 N.J. 113, 126-

27 (1969). Thus, the immunity provided by N.J.S.A. 38A:13-1.2 is

not limited to militia members. Because plaintiff received

compensation for his injuries under the MCL, the State is immune

from liability.

Contrary to plaintiff's argument, N.J.S.A. 38A:13-1.2 did not

remove the State's immunity. N.J.S.A. 59:1-6 provides that

"[n]othing in [the TCA] shall be construed to affect, alter or

repeal any provision of the military and veterans law . . . except

as specifically provided in repealer section [N.J.S.A.] 59:12-

5 A-2485-16T4
2[.]" N.J.S.A. 59:12-2 does not identify N.J.S.A. 38A:13-1.2 as

one of the repealed sections. In Phillips v. State, Dep't of

Defense, 98 N.J. 235 (1985), the Court concluded that:

the retention of the . . . [MCL] by the . . .
[TCA], N.J.S.A. 59:1-6, indicates that the
Legislature did not intend to open the State
to civil liability to servicemen whose remedy
against the State had already been provided
for by the . . . [MCL]. Indeed, the
Legislature explicitly provided in the . . .
[TCA] that the State was not to be held liable
for injury "[e]xcept as otherwise provided"
by the [TCA]. N.J.S.A. 59:2-1.

[Id. at 242 (ninth alteration in original).]

N.J.S.A. 59:2-1(b) provides that "[a]ny liability of a public

entity established by [the TCA] is subject to any immunity of the

public entity and is subject to any defenses that would be

available to the public entity if it were a private person." As

such, the State maintains its immunity under the MCL and cannot

be held liable for plaintiff's injuries compensated thereunder.

Because the State is immune from liability for plaintiff's injuries

under the MCL, defendant is immune under the TCA, N.J.S.A. 59:3-

1(c). See Graber v. Richard Stockton College of New Jersey, 313

N.J. Super. 476, 487 (App. Div. 1998).

Reading N.J.S.A. 38A:13-1.2 and N.J.S.A. 59:2-1(b) together

aligns with this State's strong public policy against double

recoveries and the Legislature's intent in passing N.J.S.A.

6 A-2485-16T4
38A:13-1.2. The plain and clear language of N.J.S.A. 38A:13-1.2

suggests the Legislature intended to prevent double recovery by

an injured militia member already provided compensation under the

MCL, as it mandates the surrender of any "right to any other

method, form or amount of compensation or determination thereof

from the State or the organized militia[.]" Moreover, N.J.S.A.

38A:13-1.2 immunizes the State, organized militia, or any militia

member against liability once the injured militia member receives

compensation under the MCL. Thus, the statute ensures the injured

militia member is only compensated once. This mirrors the WCA's

bar against double recovery, N.J.S.A. 34:15-40, once an injured

party is awarded benefits, which are the same benefits awarded

under the MCL. See N.J.S.A. 38A:13-1. Because plaintiff was

compensated under the MCL for his injuries, he cannot obtain any

additional recovery from the State or defendant.

Affirmed.

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