An Ocean County Prosecutor's Office (OCPO) detective was operating a county vehicle while performing official duties when she struck another vehicle injuring a passenger. After the passenger sued the OCPO and the detective for personal injuries, the State agreed to defend and indemnify both defendants. However, the State asserted that pursuant to N.J.S.A. 59:10A-5 it could avail itself of the County's self-insurance and excess insurance policies mandated by N.J.S.A. 40A:10-3 as the primary sources to satisfy any judgment or settlement in the tort case. The State sued the County seeking a declaratory judgment to this effect. The trial court dismissed the complaint.
On appeal, the court affirmed and held that N.J.S.A. 59:10A-5 grants the Attorney General the ability to direct who shall take up the defense on behalf of the State. However, pursuant to Wright v. State, 169 N.J. 422 (2001), where an employee is entitled to a defense by the State, the State shall also bear the costs of indemnification. N.J.S.A. 59:10A-5 does not alter the State's obligation to defend and indemnify utilizing its resources.