GEORGE WASHINGTON VS. RUNNELLS OPERATING, LLC (L-0070-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3996-16T2
GEORGE WASHINGTON and
LINDA GARY-WASHINGTON,
Plaintiffs-Appellants,
v.
RUNNELLS OPERATING, LLC,
Defendant-Respondent,
and
CENTER MANAGEMENT GROUP, LLC,
Defendant.
_____________________________
Argued May 15, 2018 – Decided July 25, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No.
L-0070-16.
Vincent Jesuele argued the cause for
appellants (Kessler, Digiovanni & Jesuele,
LLP, attorneys; Vincent Jesuele, on the
brief).
Judith A. Wahrenberger argued the cause for
respondent (Ruprecht Hart Weeks &
Ricciardulli, LLP, attorneys; Judith A.
Wahrenberger, of counsel; Lisa B. Ramirez, on
the brief).
PER CURIAM
Plaintiffs George Washington and Linda Gary-Washington1
appeal from an April 28, 2017 Law Division order dismissing their
personal injury lawsuit with prejudice, based upon the exclusivity
bar of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -146
(the Act). For the reasons that follow, we affirm the grant of
summary judgment to defendant but remand for the entry of an
amended order to provide for the dismissal of plaintiffs' claims
without prejudice, subject to reinstatement in the event the
Division of Workers' Compensation (Division) determines
plaintiff's claims are not compensable under the Act.
On March 5, 2015, plaintiff, an employee of Runnells Center
for Rehabilitation and Healthcare,2 left work and drove his car to
pick up lunch at a nearby restaurant. On his return to work,
plaintiff's car struck a guardrail on a snow-covered access
1
In this opinion, we refer to George Washington individually as
plaintiff, and George Washington and Linda Gary-Washington
collectively as plaintiffs. Linda Gary-Washington sues per quod.
2
Runnells Center for Rehabilitation and Healthcare represents a
trade name utilized by defendant Runnells Operating, LLC. In this
opinion, we refer to Runnells Operating, LLC as defendant since
plaintiffs apparently abandoned their claims against the other
named defendant, Center Management Group, LLC.
2 A-3996-16T2
driveway owned by defendant. While completing an accident report
at the scene, plaintiff exited his vehicle, slipped and fell,
sustaining a fractured ankle.
In April 2016, plaintiffs filed suit against defendant
seeking compensatory damages. Plaintiffs' Law Division complaint
alleged that defendant owned, controlled, and negligently
maintained "the driveway" where plaintiff's accident occurred,
causing plaintiff to slip and fall, and sustain "severe and
permanent injuries." In its answer, defendant failed to plead the
exclusivity bar of the Act as an affirmative defense. In February
2017, after plaintiff's deposition, defendant moved to amend its
answer to assert the exclusivity bar as a separate defense and for
summary judgment.3
Following oral argument, the judge initially denied
defendant's motions without prejudice. The judge requested
additional information relating to the federal tax identification
numbers for defendant and Runnells Center for Rehabilitation and
Healthcare (the entity plaintiff named as his employer in a
workers' compensation petition he filed on February 28, 2017).
3
Just before filing the motion, defendant's counsel contacted
plaintiffs' counsel to alert him of the proposed amendment to
defendant's answer, since the statute of limitations on
plaintiff's workers' compensation claim would run in less than a
month. On February 28, 2017, plaintiff filed a claim petition
with the Division.
3 A-3996-16T2
Because both entities had the same federal tax identification
number, the judge vacated his initial order and granted defendant's
motion for leave to amend its answer to assert the exclusivity bar
as a defense; in addition, the judge granted defendant's motion
for summary judgment, finding plaintiffs' claims barred by the
Act.4
I
We first address plaintiffs' argument that the motion court
"erred in granting leave to defendant to amend its answer." Trial
courts should permit parties to amend their pleadings "freely
. . . in the interest of justice." R. 4:9-1. A trial court's
decision to grant or deny a motion to amend under Rule 4:9-1 is
"best left to the sound discretion of the trial court in light of
the factual situation existing at the time each motion is made."
Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994) (citing
R. 4:9-1; Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J.
Super. 349, 364 (App. Div. 1989)).
"It is [well settled] that an exercise of that discretion
will be sustained where the trial court refuses to permit new
4
At oral argument, counsel advised that the Division has stayed
plaintiff's workers' compensation claim, pending the outcome of
this appeal. Counsel further advised that defendant's answer to
the workers' compensation petition included a separate defense
asserting that plaintiff's accident did not occur in the course
of his employment.
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claims . . . to be added late in the litigation and at a point at
which the rights of other parties to a modicum of expedition will
be prejudicially affected." Du-Wel Prods., 236 N.J. Super. at
364. Because defendant's attorney alerted plaintiffs' attorney
of the proposed amendment in time for plaintiff to file a workers'
compensation claim, plaintiffs' rights were not prejudicially
affected by the late amendment. The motion court here reasonably
exercised its discretion in granting defendant leave to amend its
answer to assert the workers' compensation exclusivity bar as a
defense.
II
We next address plaintiffs' argument the motion court erred
in granting defendant's motion for summary judgment. We review a
trial court's decision granting summary judgment de novo,
employing the same standard used by the trial court. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.
189, 199 (2016). We first determine whether there are material
facts in dispute and, if not, whether the undisputed facts, viewed
most favorably to the non-moving party, entitle the moving party
to judgment as a matter of law. Liberty Surplus Ins. Corp. v.
Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
5 A-3996-16T2
Having reviewed the record de novo, we conclude the record
shows no material facts in dispute, making the case ripe for
summary judgment. See Brill, 142 N.J. at 540. We further conclude
the trial judge reached the correct decision as a matter of law.
Entitlement to workers' compensation benefits is subject to
the "premises rule" set forth in N.J.S.A. 34:15-36. Kristiansen
v. Morgan, 153 N.J. 298, 316 (1998). The Act provides, "Employment
shall be deemed to commence when an employee arrives at the
employer's place of employment to report for work and shall
terminate when the employee leaves the employer's place of
employment, excluding areas not under the control of the
employer . . . ." N.J.S.A. 34:15-36.
The premises rule is based on the notion that
an injury to an employee that happens going
to or coming from work arises out of and in
the course of employment if the injury takes
place on the employer's premises. The
premises rule "limits recovery to injuries
which occur on the employer's premises . . .
by confining the term 'course of employment'
to the physical limits of the employer's
premises." Thus, unless one of the statutory
exceptions not implicated here is triggered,
an employee who is not physically on the
employer's premises is not technically in the
course of the employment.
The Legislature used the phrase "excluding
areas not under the control of the employer"
in its definition of employment because it
intended to include areas controlled by the
employer within the definition. That phrase
was intended to make clear that the premises
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rule can entail more than the four walls of
an office or plant. The pivotal questions
under the premises rule are (1) where was the
situs of the accident, and (2) did the
employer have control of the property on which
the accident occurred.
[Kristiansen, 153 N.J. at 316-17 (citations
omitted) (alteration in original).]
In Kristiansen, a New Jersey Department of Transportation
(NJDOT) employee, whose job involved raising and lowering a
drawbridge on the Victory Bridge, sustained fatal injuries when a
vehicle struck him as he walked north on the bridge to get to his
car after work. Id. at 303-04. The employee worked in one of
three structures located at the center of the bridge, and he parked
his car in one of several parking lots, all reachable only by
walking north on the bridge. Ibid. The Court held that, because
NJDOT owned the bridge, it constituted part of the employer's
premises:
Regardless of which lot was used, the
employees of NJDOT had to walk north on the
bridge, and the accident occurred on the
bridge. This case is no different than the
case of an employee who punches out on the
time clock at the front entrance and is
injured while walking through the plant to
reach his or her car parked in a rear parking
lot. Hence, we affirm the Appellate
Division's holding that compensability was
established as a matter of law.
[Id. at 317.]
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In addition to occurring on the employer's premises during
work hours, the injury must "arise out of" the employment.
N.J.S.A. 34:15-1; Zahner v. Pathmark Stores, Inc., 321 N.J. Super.
471, 478 (App. Div. 1999). In Zahner, we noted that "injuries
occurring on the employer's premises during a regular lunch hour
arise 'in the course of employment.'" Id. at 479 (quoting Chen
v. Federated Dep't Stores Inc., 199 N.J. Super. 336, 338 (App.
Div. 1985)). Because the Act constitutes humanitarian social
legislation, we construe it liberally in favor of coverage, for
the protection of employees. Valdez v. Tri-State Furniture, 374
N.J. Super. 223, 232 (App. Div. 2005).
Following our review of the summary judgment record, we agree
with the motion judge's legal conclusion that the exclusivity bar
of the Act applies, requiring the dismissal of plaintiffs' claims.
Defendant owned and controlled the driveway where plaintiff's
accident occurred. Thus, it was part of the employer's premises.
The accident also occurred during plaintiff's regular lunch hour.
When a plaintiff asserts both a workers' compensation claim
and a general negligence claim, the court may stay the latter
proceeding and transfer the matter to the Division. Acikgoz v.
N.J. Tpk. Auth., 398 N.J. Super. 79, 82-83 (App. Div. 2008). In
Acikgoz, two vehicles collided on an access road owned by the New
Jersey Turnpike Authority (the Turnpike). Id. at 82. Both drivers
8 A-3996-16T2
(Acikgoz and Lowden) worked for the Turnpike; at the time of the
accident, Acikgoz had completed his shift and was going home in
his car. Ibid. Acikgoz sustained injuries in the accident and
filed a Law Division negligence complaint against Lowden. Ibid.In addition, Acikgoz filed a claim petition against the Turnpike
with the Division. Ibid. The Turnpike intervened in the
negligence action and moved to stay and transfer the litigation
to the Division. Ibid. The Law Division granted the transfer in
order to determine if the motor vehicle accident was compensable.
Id. at 82-83.
A compensation judge ultimately "determined that neither
[Acikgoz] nor Lowden were in the course of their employment at the
time of the accident, that therefore N.J.S.A. 34:15-8 did not
apply, and that [Acikgoz's] accident was not compensable." Id.
at 83. The compensation judge found that Lowden merely drove to
work to pick up his pay check, which does not qualify as acting
in the "course of his employment." Ibid. In addition, the access
road where the accident occurred was open to the public and one
of several means of ingress and egress into the workplace. Id.
at 89. The compensation judge reasoned that Lowden used the access
road for "convenience" rather than for the benefit of his employer.
Id. at 87. Finally, although the Turnpike "controlled" the
overpass, the compensation judge reasoned that because the
9 A-3996-16T2
Turnpike owned the entire turnpike system, it could not conclude
that the accident occurred in the course of employment solely
because Turnpike employees were involved. Id. at 90. Therefore,
the Act did not bar Acikgoz's Law Division complaint asserting
general claims of negligence. Id. at 91.
Like Acikgoz, plaintiffs asserted both a Law Division claim
and a workers’ compensation claim. Following Acikgoz, we vacate
the order dismissing plaintiffs' complaint with prejudice and
remand for the Law Division to enter an order of dismissal without
prejudice pending the outcome of plaintiff's workers' compensation
claim. Barring an unforeseen development, we expect the Division
will rule plaintiff's accident occurred in the course of his
employment, making him eligible to receive workers' compensation
benefits. Unlike Acikgoz, the access driveway here provides
ingress and egress for defendant's facility and does not serve as
a roadway for the public. In addition, unlike Lowden, plaintiff
sustained his injury on his lunch break, while returning to work
on his employer's driveway to complete his workday.
In any event, the application of the exclusivity bar in
N.J.S.A. 34:15-8 depends upon whether the claims are, in fact,
compensable for workers' compensation purposes. Even where a
party can file an action with both an administrative agency and
the Law Division, where the issues require an adjudication of an
10 A-3996-16T2
issue typically determined by the administrative agency, the
agency has "primary jurisdiction" to which the Law Division should
defer. Kristiansen, 153 N.J. at 314 (citations omitted).
Therefore, the trial court should not have dismissed
plaintiffs' claims with prejudice. Rather, the court should have
dismissed plaintiffs' complaint without prejudice since there has
been no determination of compensability by the Division. We
therefore remand to the trial court for entry of an amended order
dismissing plaintiffs' claims without prejudice, subject to their
reinstatement in the event the Division determines plaintiff's
claims are not compensable under the Act.
Affirmed in part, vacated and remanded in part.
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