Appellate Division reverses Superior Court’s order, vacates the transfer order, and remands the case to enter an order denying motion to dismiss.

Under the New Jersey Workers’ Compensation Act, “each and every member of a volunteer fire company doing public fire duty . . . who may be injured in line of duty shall be compensated.” The plaintiff, a volunteer firefighter, was struck by a defendant’s fire truck that was in use to bar hop. The plaintiff filed this personal injury suit against the defendants. In November 2020, the defendants moved to dismiss for lack of subject matter jurisdiction and claimed the plaintiff’s sole remedy is workers’ compensation. The motion judge denied that the court lacked subject matter jurisdiction, but noted the Division of Workers’ Compensation had primary jurisdiction and transferred the case. The plaintiff moved for reconsideration or leave to appeal, but was denied. 
 
The Division’s computer system would not recognize the motion judge’s transfer order. Unless the plaintiff voluntarily filed for benefits in workers’ compensation court, the case could not be adjudicated. As the plaintiff did not wish to do so, he moved for reinstatement of his complaint with the trial court. This was denied, but the judge did write to the Division regarding the transfer order. Again, the supervising judge of the Division reiterated the case could not move forward without a petition for benefits. Again, the plaintiff moved for reinstatement of his complaint and was denied, noting the plaintiff could file a petition under court direction, which would not be deemed an admission. The plaintiff filed a notice of appeal. 
 
The Appellate Division found the judge erred in referencing the primary jurisdiction doctrine. Rather, there were comments by the Supreme Court in which both the Division and the Superior Court have authority to consider jurisdiction and employment issues. The Appellate Division noted there were four grounds for invocation of the primary jurisdiction doctrine, including the matter is “often determined by trial judges and juries,” the Division may be “best suited,” though the Superior Court is also familiar with the issue, there is no risk of inconsistent rulings, and the plaintiff declined to file a petition with the Division. However, the plaintiff declined to file a petition with the Division. As these factors weigh in favor of the plaintiff, the Appellate Division concluded the judge abused her discretion. It was noted the Division does not have exclusive jurisdiction and the trial judge should not have assigned the task of deciding personal injury damages to the Division. The order under review was reversed, the transfer order vacated and the matter remanded to enter an order denying the defendants’ motion to dismiss.
 

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