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March 2, 1976

SOUTHERN WOOD PIEDMONT COMPANY, a Delaware Corporation, FLOOR CONSTRUCTORS, INCORPORATED, a Georgia Corporation, and ELITE ASSOCIATES, INCORPORATED, a New York Corporation, Defendants and Third-Party Plaintiffs, v. EDGAR H. ALLEN & SON, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. THE HOME INDEMNITY COMPANY, Fourth-Party Defendant

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 Plaintiff Robert Ackerman in this diversity action for personal injuries is an employee truck driver of Edgar H. Allen & Son, Inc. (Allen). Plaintiff is a resident of and Allen is incorporated and has its principal place of business in New Jersey. The injury occurred at a construction site in Brooklyn, New York, where plaintiff was to deliver and unload flooring blocks. Named as defendants are (1) the general contractor of the construction job, Elite Associates, Inc., a New York corporation; (2) the flooring contractor, Southern Wood Piedmont Co., a Delaware corporation authorized to do business in New Jersey; and (3) the sub-contractor on the flooring job, Floor Constructors, Incorporated, a Georgia corporation.

 The complaint alleges that, while making a delivery and unloading flooring blocks at the job site, plaintiff was injured due to the negligence of defendants in failing to provide him with a safe place to work.

 Each of the defendants impleaded plaintiff's employer Allen as third-party defendant, alleging that Allen's equipment, an hydraulic forklift, was defective and the cause of plaintiff's injuries. The third-party complaint seeks contribution for all or part of any judgment plaintiff might recover of defendants. Allen then filed a fourth-party complaint against its automobile and general liability insurance carrier, The Home Indemnity Co. (Home), for a declaratory judgment that it was covered under the policies and that Home was obligated to defend it in the third-party action.

 Allen now moves to dismiss the third-party complaint against it and, if the motion is denied, for summary judgment establishing the obligations of Home.

 Motion to Dismiss

 Allen's motion to dismiss the third-party complaint brings into focus the interplay between workmen's compensation laws and the right to contribution among joint tortfeasors amidst a question of choice of law.

 Plaintiff is recovering workmen's compensation benefits from Allen, apparently under the New Jersey Labor and Workmen's Compensation Law. 34 N.J.S.A. § 15, et seq. Under New Jersey law an employee cannot sue his employer in tort. When an employer and employee have agreed to the provisions of the Workmen's Compensation Act for personal injury to the employee,

"Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." 34 N.J.S.A. § 15-8.

 The injured employee retains the right to recover damages from third parties for their negligence under New Jersey's Joint Tortfeasors Contribution Law:

"Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; . . . ." 2A N.J.S.A. § 53A-3.

 The New York Workmen's Compensation Law makes similar provision that an employer's exclusive liability to its employee is the payment of workmen's compensation benefits and that an employee retains the right to sue third parties for their negligence. 64 NYWCL §§ 11, 29.

 The laws of the two States differ, however, with respect to whether the employer may be impleaded by the defendants. Under New Jersey law, when an employee who has received workmen's compensation benefits sues a third party in a cause of action for negligence, the employer may not then be impleaded on a claim for contribution or indemnity. Ruvolo v. United States Steel Corp., 133 N.J. Super. 362, 336 A.2d 508 (1975); Karadis Bros. Painting Co., Inc. v. Pennsylvania National Mutual Casualty Insurance ...

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