designated and sworn as a Special Deputy United States Marshal and,
hence, became, for all practical purposes, a federal employee.
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. Ultimately,
the Supreme Court of New Jersey held that the plaintiff was barred under
South Carolina law from pursuing his cause of action against Du Pont.
The court in Eger described the nature of South Carolina's interest in
having its law applied as follows. It spoke of that state's interest in
"protecting the welfare of persons working within its borders, affixing
responsibility for that protection, regulating the safety of the
allocating the financial costs resulting from employment accidents." 539
A.2d at 1217. Moreover, it spoke of a "`system of give and take [which]
would be upset if the employee could sue for negligence in another
jurisdiction.'" Id. (quoting Jonathan Woodner Co. v. Mather; 210 F.2d 868,
873-74 (D.C.Cir. 1954), cert. denied, 348 U.S. 824, 75 S.Ct. 39, 99
L.Ed. 650 (1954)). These interests the court set off against the
interests of New Jersey in granting one of its residents a greater
recovery than that which he had already received under workers
compensation and in permitting the plaintiff's direct employer (the
subcontractor) to be reimbursed. Eger, 539 A.2d at 1218.
The government argues that this language indicates that, since the same
interests exist in this case involving New York and New Jersey as existed
between New Jersey and South Carolina in Eger, the same result should
follow, namely, that the law of the place of the accident should apply.
The argument ignores the fact that the same general policies may be
implicated in different ways in different cases, and the different
factual situations require different results. In this case, New Jersey's
policies reflected in its workers compensation scheme will not be affected
one bit by the application here of New York law. While New York has a
substantial interest in furthering the policies of its workers
compensation scheme on these facts, the third-party defendant is not a
New Jersey resident who has conscientiously upheld its side of the
"bargain" by paying into New Jersey's workers compensation fund. Thus,
the integrity of the workers compensation quid pro quo in New Jersey is
not at risk, as it may have been vis-à-vis South Carolina in
Furthermore, since the plaintiff is not a New Jersey resident, New
Jersey has no interest in limiting the extent to which the plaintiff
recovers. The plaintiff did not assert a claim under New Jersey workers
compensation, thus the risk of "double-dipping" as to New Jersey —
i.e., seeking a cash award under the compensation fund directly, then a
further award indirectly by way of a third-party action — is
non-existent. Moreover, no suggestion has been made that New Jersey has a
policy of generally minimizing recovery by out-of-state drivers to keep
them out of the state. In sum, New Jersey's only connection with this
case is itself fortuitous: it happens to have been the place where the
New Jersey's lack of interest is in contrast to the interest of New
York in this case. Here, the plaintiff, the defendant, and, for purposes
of this analysis, the third-party defendant are all New York "residents."
New York has struck a fundamentally different balance in terms of avenues
available for its plaintiffs to recover and has rejected the argument
that third-party recoveries against its employers will undermine its
workers compensation system. Both of these policy choices are implicated
by the facts of this case. The New York plaintiff has asserted his claim
under New York workers compensation, and the third-party defendant, the
U.S. Government, operating out of New York, cannot reasonably claim any
right to protection from New Jersey's exclusivity-of-remedies provision,
since protecting the government in this case would further no interest of
For the reasons stated above, the thirdparty defendant's motion to
dismiss is denied.