Court Rules No Death Benefits in LS Principal Case

September 7, 2012
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By John Burton

A state Appellate Court has determined the widow of the Little Silver middle school principal, killed in an auto crash four years ago on his way to work, is not entitled to death benefits under a work insurance policy.

The two-judge panel ruled Aug. 28 that the estate of Donald Merce was not eligible to receive death benefits under his teachers’ and pension annuity fund policy because he wasn’t in the performance of his job when he was killed. Merce had been principal of the district’s Markham Place School for nearly 20 years.

The appellate decision reaffirmed an Administrative Law judge’s 2011 decision on the matter.

The two decisions contend that Merce was commuting to his job when the crash occurred and his decision to leave for work earlier to stop and purchase doughnuts for the school’s Teacher Appreciation Day “was not an event sponsored by the board of education” and was not required as part of his traditional duties, the decision indicated.

Merce, 58, was driving north on Oceanport Avenue, Oceanport, at about 7 a.m. on May 8, 2008, on his way to work from his Oakhurst home, when Dennis Smentkowski, 42, traveling south on Oceanport Avenue, crossed the road’s dividing line and crashed head-on into Merce’s car.

Smentkowski, a Tinton Falls resident and former Long Branch police officer on a disability pension, was prosecuted in federal court because the road fronts what was then Fort Monmouth, a U.S. Army installation. Smentkowski pleaded guilty last October to involuntary manslaughter and admitted to taking more than four times the recommended dosage of Ambien, a prescription sleep aid.

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Merce’s death shocked and saddened the community, inspiring an immediate outpouring of emotion from students, parents and others at the time. The district dedicated the school’s gymnasium in his honor in January 2012.

Merce left a wife and five children.

On the day of the accident, Merce had left home a little earlier to stop and purchase the doughnuts, which his widow, Bobbie Merce, in court filings, said should make her husband eligible for the benefits. She claimed the policy allowed for payment for the insured person who was injured traveling as part of their job. The board of education, however, in May 2008, advised the state’s Division of Pensions and Benefits, that Merce was not performing his job and had stopped for the purchase on his own accord. The attorney for the board pointed out that on previous occasions, when he stopped to treat the faculty, he had never sought reimbursement.

The Administrative Law judge concluded that for the death to be deemed in performance of Merce’s duties, the travel would have had to be “necessary to the performance of the job.”

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