The opinion of the court was delivered by: Sifton, District Judge
This is a motion to dismiss for failure to state a claim upon which
relief can be granted brought, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, by third-party defendant United States of
America. Both third-party plaintiff Kim and plaintiffs Julio and Joy
Campuzano have submitted papers in opposition to the motion.
On October 28, 1987, Mr. Campuzano was involved in an automobile
accident in Bayonne, New Jersey, when the car in which he was riding,
which was being operated by Dottin, allegedly swerved to avoid an
automobile driven by defendant/thirdparty plaintiff Kim. At the time of
the accident, Campuzano and Dottin were returning to New York from a day
of Taskforce surveillance in Jersey City, New Jersey. As such, the two
were acting within the scope of their employment by the federal
government. Plaintiff and defendant/third-party plaintiff are all New
York residents. New Jersey's relationship with the case is limited to the
fact that it was the situs of the accident.
Notwithstanding his status as a federal employee injured while acting
within the scope of federal employment, Mr. Campuzano did not seek
compensation for his injuries under the Federal Employees Compensation
Act (FECA), the federal worker's compensation analogue. Rather, Mr.
Campuzano sought and received remuneration for his medical expenses from
New York City's Worker's Compensation Insurance Fund.
Sometime thereafter, plaintiff Campuzano brought suit against Mr. Kim
in New York State Supreme Court. In response, defendant Kim brought a
third-party suit for indemnification and contribution against Dottin, who
then removed the action to this Court under 28 U.S.C. § 2671 since he
was, at the time of the accident, a federal employee acting within the
scope of his employment under 28 U.S.C. § 2671. Ultimately, Mr. Kim
dropped his individual claim against Dottin and, by amended complaint,
commenced a third-party suit against the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. That suit, seeking
indemnification and contribution for any damages Kim is required to pay
Campuzano, is the subject of the current motion.
The United States seeks dismissal of the third-party complaint against
it on the ground that the law applicable to Mr. Kim's claim is the law of
the State of New Jersey and that New Jersey law bars claims of the sort
made here against the United States.
Section 1346(b) of the FTCA provides that the district court shall
have exclusive jurisdiction over claims against the government for civil
damages "under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred." Since the accident occurred in
New Jersey and any negligent act or omission would have occurred there,
the plain language of the statute directs that this Court apply New
As a matter of statutory interpretation, it is not altogether clear on
the face of the statute whether Section 1346(b)'s reference to "the law
of the place where the act or omission occurred" denotes the internal law
of that place, i.e. the substantive law, or the "whole" law of that
place, i.e. the law including that state's conflicts rules. However, in a
case quite similar to the one at bar, Richards v. United States,
369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), the Supreme Court
concluded that "reading the statute as a whole, with due regard to its
purpose, requires application of the whole law of the State where the act
or omission occurred." Id. at 11, 82 S.Ct. at 592. The Court in Richards
reasoned that, in cases which involve "events touching more than one
`place,' a problem which Congress apparently did not explicitly consider,"
id. at 9, 82 S.Ct. at 591, the Congressional intent, to the extent that
there was one, was "not . . . to set the [federal] courts completely
adrift from state law." Id. at 11, 82 S.Ct. at 592. Rather, federal
courts facing this issue must behave as the relevant state court would,
applying that state's conflicts of laws rules in order to determine whose
substantive law will govern. See Kohn v.
United States, 591 F. Supp. 568, 572 (E.D. N.Y.), aff'd, 760 F.2d 253 (2d
Were this Court simply to apply New Jersey internal law, we would
likely be compelled to dismiss the action against the United States.
Under Ramos v. Browning Ferris Industries of South Jersey, Inc.,
103 N.J. 177, 510 A.2d 1152 (1986), third-party suits against plaintiff's
employer are barred on the theory that the quid pro quo for an employer's
participation in New Jersey's workers compensation scheme is protection
from tort liability, direct or indirect. New Jersey has decided that
permitting third-party suits to go forward against employers undermines
the "bargain" upon which workers compensation is based, although the fact
that the plaintiff in this case did not receive compensation under either
New Jersey workers compensation or under FECA substantially weakens the
nexus between the elements of the quid pro quo on these facts.
In contrast to the law of New Jersey, under New York law suits by a
third party for contributions from an employer are permitted to go
forward. See Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288,
331 N.Y.S.2d 382 (1972). Accordingly, the resolution of the New Jersey
conflicts issue is at the heart of this motion.
In keeping with the modern trend, New Jersey has adopted the
governmental interest test for choice of law issues. See Mellk v.
Sarahson, 49 N.J. 226, 229 A.2d 625 (1967). Under that test, courts must
analyze the policies which support each of the two conflicting rules and
then determine, in light of those policies and the relevant facts, which
state has the greater interest in having its law applied. New Jersey has
affirmed this approach in a workers compensation case as recently as
1988, in Eger v. E.I. Du Pont DeNemours Co., 110 N.J. 133, 539 A.2d 1213
In Eger, plaintiff was a New Jersey resident, employed by a New Jersey
firm, injured while working as a subcontractor in South Carolina. The
plaintiff sought compensation under New Jersey's workers compensation
law, then instituted a thirdparty tort action against the general
contractor of the job, the South Carolina firm of Du Pont. 539 A.2d at
1214. Du Pont moved for summary judgment on the ground that South
Carolina's workers compensation law prohibits tort actions against
general contractors since they participate in that state's workers
compensation scheme. New Jersey law does not force general contractors to
participate in its workers compensation scheme, and, thus, it permits tort
actions against them. 539 A.2d at 1213.
On these facts, the New Jersey Supreme Court was faced with a "true
conflict." Friedell, "Interest Analysis in New Jersey", 21 Rutger's L.J.
67, 82 (1989). On the one hand, South Carolina had an interest in
shielding its employer from tort liability because that employer had
consciously subscribed to the quid pro quo of payment into the
compensation fund in exchange for no tort liability. New Jersey, on the
other hand, had an interest in insuring that its resident, the
plaintiff, recover as fully as possible under New Jersey law. ...