VINCENT INNARELLA VS. WEDGEWOOD CONDOMINIUM ASSOCIATION, Â INC.(L-2201-13, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2542-15T2
VINCENT INNARELLA,
Plaintiff-Appellant,
v.
WEDGEWOOD CONDOMINIUM
ASSOCIATION, INC., WEDGEWOOD
GARDEN CONDO ASSOCIATION,
INC., PROGRESSIVE BUILDING
MANAGEMENT COMPANY, INC.,
GARDEN HOMES, INC., THE
PROGRESSIVE COMPANIES, and
LAKEVIEW GARDENS,
Defendants-Respondents.
_______________________________
Submitted April 3, 2017 – Decided June 14, 2017
Before Judges Haas and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-2201-13.
Gill & Chamas LLC, attorneys for appellant
(Paul K. Caliendo, of counsel and on the
briefs).
Hannum Feretic Prendergast & Merlino LLC,
attorneys for respondents (Michael J. White,
on the brief).
PER CURIAM
Plaintiff Vincent Innarella appeals from the November 6, 2015
grant of summary judgment to defendants, Wedgewood Condominium
Association, Inc., Wedgewood Garden Condo Association, Inc.,
Progressive Building Management Company, Inc., and The Progressive
Companies (defendants). After reviewing the record in light of
the contentions advanced on appeal and the applicable principles
of law, we affirm.
This case arises out of a personal injury action in which
plaintiff alleges that he tripped and fell on a broken step while
walking down an exterior staircase at the Wedgewood Gardens
(Wedgewood) condominium complex.
At the time of the accident, plaintiff was employed as a
superintendent for the Wedgewood Gardens Condominium Association,
Inc. (Association), which owned the Wedgewood property. Pursuant
to a written superintendent agreement plaintiff had signed in
2007, he was considered an employee of the Association. The
agreement provided that "[a]ll assignments of work related duties
will be through [the property management company]," and that
plaintiff could not "delegate, subcontract or transfer any part
of [his] job . . . without the authorization of the Property
Manager."
In 2010, Progressive Building Management Company, Inc.
(Progressive) became the property manager for Wedgewood pursuant
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to a management agreement. Peter Johnson was the Progressive
representative for Wedgewood. Plaintiff testified during his
deposition that he received his assignments directly from Johnson.
When Johnson was on the property, he would ask plaintiff to do
tasks such as picking up branches and emptying the garbage.
Plaintiff picked up his paycheck at the Progressive offices; the
payee on the check was Wedgewood Gardens Condominium Association
c/o Progressive Companies.
In September 2011, Johnson recommended to the Board of
Directors of the Association (Board) that plaintiff should be
terminated for his inappropriate behavior to a resident in addition
to other infractions. The Board agreed and voted for plaintiff
to be discharged. Johnson met with plaintiff at Progressive's
offices to advise him of the Board's decision and his termination.
As a result of the injuries sustained in his fall, plaintiff
filed a workers' compensation action against Wedgewood and
received benefits. He subsequently instituted a civil action
against defendants, seeking compensation for his injuries. After
the completion of discovery, defendants filed motions for summary
judgment; plaintiff filed a cross-motion for summary judgment.
Defendants argued that plaintiff held the relationship of a
special employee with their entities, and therefore his third
party claim was barred under the workers' compensation statute,
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N.J.S.A. 34: 15-1 to -69.3. Plaintiff disagreed, contending that
the facts presented did not support a special employee
relationship. In an oral decision issued from the bench on
November 6, 2015, the judge referred to Walrond v. County of
Somerset, 382 N.J. Super. 227 (App. Div. 2006) and found that
there was an implied contract between Progressive and plaintiff.
He concluded that Progressive had the right to control and did
control plaintiff's job duties of the inspection, repair and
maintenance of the property. The court was satisfied that there
was sufficient evidence presented to find that a special employment
relationship existed, and summary judgment was granted to
defendants. Plaintiff's motion for reconsideration was denied on
January 22, 2016.
We review a trial court's grant of summary judgment de novo,
Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div.
2007), using the same standard as the trial court. Rowe v. Mazel
Thirty, LLC, 209 N.J. 35, 41 (2012). We consider whether there
are any material factual disputes and, if not, whether the facts
viewed in the light most favorable to the non-moving party would
permit a decision in that party's favor on the underlying issue.
See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
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together with affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-
2. A "non-moving party cannot defeat a motion for summary judgment
merely by pointing to any fact in dispute." Brill, supra, 142
N.J. at 529.
The Workers' Compensation Act provides an employee with an
"exclusive remedy" against the employer for injuries "arising out
of and in the course of the employment." Gore v. Hepworth, 316
N.J. Super. 234, 240 (App. Div. 1998); N.J.S.A. 34:15-1, -7, -8.
In exchange for receiving workers' compensation benefits, the
employee surrenders common law tort remedies against his or her
employer and co-employees, except for intentional wrongs.
N.J.S.A. 34:15-8.
However, in a situation where an employee of one entity is
borrowed by another employer, that employee may prevail in a common
law action against the borrowing employer depending on whether the
employer is determined to be a "special employer." Blessing v.
T. Shriver and Co., 94 N.J. Super. 426, 430 (App. Div. 1967). If
the borrowing employer is determined to be a special employer,
then the borrowed employee is precluded from bringing an action
against the special employer. Ibid. A special employment
relationship exists where "(a) [t]he employee has made a contract
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of hire, express or implied, with the special employer; (b) [t]he
work being done is essentially that of the special employer; and
(c) [t]he special employer has the right to control the details
of the work." Volb v. Gen. Elec. Capital Corp., 139 N.J. 110, 116
(1995).
Courts also utilize two additional factors in determining
special employment: "whether the special employer [d] pays the
lent employee's wages, and [e] has the power to hire, discharge
or recall the employee." Blessing, supra, 94 N.J. Super. at 430.
No one factor is dispositive; all five are weighed to evaluate a
special employment relationship. Walrond, supra, 382 N.J. Super.
at 236 (citations omitted). Additionally, "not all five [factors]
must be satisfied in order for a special employment relationship
to exist." Ibid. However, "it is believed that the most
significant factor is the third: whether the special employer had
the right to control the special employee." Ibid. (citing Volb,
supra, 139 N.J. at 116); see also, e.g., Mahoney v. Nitroform Co.,
20 N.J. 499, 506 (1956) (stating that the right to control is an
"essential" element of the employment relationship); Gore, supra,316 N.J. Super. at 241; Santos v. Std. Havens, Inc., 225 N.J.
Super. 16, 22 (App. Div. 1988) (recognizing the significance of
an employer's "right to exercise a higher degree of authority"
over any actual discretion exercised by an employee).
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On appeal, plaintiff contends that the trial judge erred in
finding a special employment relationship. Specifically,
plaintiff contends that he did not have an implied contract with
Progressive, the work he performed at Wedgewood was not the same
character as the business of Progressive, and Progressive did not
have the right to control the details of his work. He also
asserts, without specificity, that summary judgment was
inappropriate because material issues of fact existed as to whether
plaintiff was a special employee of Progressive.
In turning to a consideration of the factors expressed in
Volb, we begin with a determination of whether there was an implied
contract between plaintiff and Progressive. An employment
contract "may be express or implied." White v. Atlantic City
Press, 64 N.J. 128, 133 (1973). A contract for hire does "not
require formality." Gomez v. Federal Stevedoring Co., Inc., 5
N.J. Super. 100, 103 (App. Div. 1949). While agreement to the
offer of employment "must be manifested in order to be legally
effective, it need not be expressed in words." Ibid. The assent
can be "implied from conduct without words." Ibid. In determining
whether an implied contract exists in the context of a special
employment relationship, our focus is on the relationship between
plaintiff and each of his potential employers. Pacenti v. Hoffman-
La Roche, Inc., 245 N.J. Super. 188, 193 (App. Div. 1991).
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Here, although plaintiff's employment contract stated he was
an employee of Wedgewood, it further advised that all of his work
assignments would be through the management company. If plaintiff
was going to be away from the property for an extended period, he
had to advise the management company.
After Progressive became the property manager, plaintiff
received assignments from Johnson in addition to his everyday
duties at the complex. Johnson was the conduit between an owner
who needed something done in his unit and plaintiff. Plaintiff
not only picked up his paycheck at Progressive's offices, it was
there that Johnson terminated his employment. The judge's finding
that there was an implied contract between plaintiff and
Progressive is supported by the evidence in the record.
Plaintiff asserts that his job duties were not of the same
character of the work of Progressive, and therefore, the second
factor in Volb cannot be met. We find this argument to be without
merit.
Under its contract with Wedgewood, Progressive was required
to "manage, operate and maintain the Property in an efficient and
satisfactory manner in accordance with standard management
practices." In doing so, Progressive could "employ adequate
personnel to exclusively perform services at the Property,
including but not limited to janitorial, security and maintenance
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functions." The general repairs and maintenance of the property
fell under the scope of Progressive's duties as property manager.
Plaintiff described his job duties as superintendent to include
the inspection, maintenance and cleaning of the property as well
as remedying and repairing any complaints in residents' units
communicated to him by Johnson. Plaintiff was described by Johnson
as the "eyes and ears" of Progressive at the property. Plaintiff's
role, in performing the repairs and maintenance of the property,
served to complete and satisfy a large component of Progressive's
duties to the Association.
The third factor of the special employment test, described
as "the most significant factor," is whether the special employer
had the right to control the special employee. Walrond, supra,
382 N.J. Super. at 236. "[I]t is well-settled that '[u]nder the
control test, the actual exercise of control is not as
determinative as the right of control itself.'" Santos, supra,225 N.J. Super. at 22 (citing Mahoney, supra, 20 N.J. at 506).
Johnson, along with several Board members, testified that
Johnson was plaintiff's supervisor who provided his work
assignments. All work requested by any homeowner was conveyed to
plaintiff by Johnson; plaintiff had been instructed not to have
any direct contact with the residents. In addition, plaintiff
testified that when Johnson came to the property he would instruct
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plaintiff to do various tasks with which he would comply. The
Board members considered Johnson to be plaintiff's supervisor.
One member recalled a meeting in which the Board directed plaintiff
that he was to follow all instructions given to him from Johnson.
We are satisfied there was sufficient evidence presented to support
the trial judge's finding that Progressive had the right to and
did control plaintiff.
For completeness, we briefly comment on the additional
special factors that plaintiff has asserted were not met. It is
true that plaintiff was not on Progressive's payroll. We, however,
give little weight to this factor and have stated that "it is not
necessary . . . [to determine if] a special relationship exists."
Kelly v. Geriatric and Med. Serv., 287 N.J. Super. 567, 577 (App.
Div. 1996). We disagree, however, with plaintiff's argument that
Progressive did not have the power to hire or fire him. After
multiple instances of inappropriate behavior for which plaintiff
received letters of reprimand from Johnson, a recommendation was
made by Johnson to the Board that plaintiff should be terminated.
In a "joint decision," the Board agreed with Johnson and plaintiff
was discharged.
In analyzing the special employment relationship through a
consideration of a totality of the Volb factors with particular
scrutiny given to the right to control, we are satisfied that the
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trial judge properly weighed the relevant factors and determined
that plaintiff was a special employee of Progressive. Therefore,
plaintiff was barred under the workers' compensation statute from
bringing a third-party claim against Progressive, and the grant
of summary judgment to defendants was supported by the credible
evidence presented to the trial court.
Affirmed.
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