The New Jersey Appellate Division ruled that the State must defend counties under the Tort Claims Act but cannot designate who shall bear the cost of indemnity. A county detective was involved in a car crash with a civilian who sued the county for negligence. Under the Tort Claims Act, the Attorney General may: 1.) defend using an attorney from its staff; 2.) designate the defense to outside counsel; or 3.) assert the State’s right under any appropriate insurance policy that requires the insurer to provide the defense. Here, the was county was self-insured for the car involved in the crash. The Attorney General claimed that its defense was secondary to the county’s insurance policy. The county disagreed, leading the State to file a declaratory action. The Attorney General’s Office claimed it was entitled to indemnification under the policy, arguing that the county owed coverage because it was self-insured. The Appellate Division held that the Act’s “plain language does not mean that the ability to designate also permits the State to designate who shall bear the costs of indemnity.” As such, the Court affirmed the Law Division’s order denying declaratory relief.
