JOHN DUTCHER VS. PEDRO PEDEIRO(L-4321-15, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1088-16T3
JOHN DUTCHER,
Plaintiff-Appellant,
v.
PEDRO PEDEIRO and BLACK
ROCK ENTERPRISES, LLC,
Defendants-Respondents.
________________________________
Submitted October 25, 2017 – Decided November 22, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
4321-15.
Stathis & Leonardis, LLC, attorneys for
appellant (Marc D. Portlock, on the briefs).
O'Toole Fernandez Weiner Van Lieu, LLC,
attorneys for respondents (Cindy M. Yu, on the
brief).
PER CURIAM
Plaintiff John Dutcher, a police officer, appeals from the
summary judgment dismissal of his personal injury complaint and
an order denying his motion for reconsideration. A vehicle struck
and injured plaintiff while he was directing traffic at a
construction site. The contractor, defendant Black Rock
Enterprises, LLC, owned the vehicle, and Black Rock's employee,
defendant Pedro Pedeiro, was driving it when the accident
occurred.1 The trial court concluded plaintiff was a special
employee of defendant and thus the Workers' Compensation Act's
exclusive remedy barred his personal injury claim.
The summary judgment motion record supported the facts
defendants set forth in their statement of material facts.
Plaintiff did not respond to them, so the facts were deemed
admitted. R. 4:46-2(b). The facts established an unrefuted prima
facie case that plaintiff was defendant's special employee. We,
therefore, affirm the summary judgment order and the order denying
reconsideration.
Ten months after plaintiff commenced this personal injury
action by filing a complaint, defendants moved for summary
judgment. The discovery end date would not expire for another two
months. Six days before defendants filed their motion, plaintiff
had scheduled depositions of himself, Pedeiro, and a
representative of Black Rock. The trial court decided defendants'
1
All further references of singular "defendant" are to Black Rock
only.
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summary judgment motion before the depositions were taken and two
days after the discovery end date.
Defendants filed with the summary judgment motion a statement
of material facts supported by the pleadings and an affidavit of
defendant's Managing Member. The facts establish that on the date
of the accident, defendant was performing work under a contract
with Middlesex County to provide milling services on county roads.
Defendant hired police officers through the Township of Woodbridge
to direct traffic during the time defendant was working on the
roads. On the date of plaintiff's accident, defendant's Managing
Member submitted a request to the Township for police officers to
provide Extra Duty Services at the construction site located at
the intersection of Woodbridge Center Drive and Plaza Drive. The
Managing Member's request specified "exactly how many officers[]
[and] patrol cars were needed, the time, location, and dates." In
her request, the Managing Member further specified "exactly what
services were required and what duties and responsibilities were
expected to be performed[.]" In response, plaintiff "was assigned"
to provide the requested Extra Duty Services at the intersection.
According to the Managing Member's affidavit, on the day of
the accident, plaintiff "reported to the [s]ite, accepted
instruction and direction, complied with [defendant's] rules,
requirements, and policies, in the performance of work on behalf
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of [defendant]." The Managing Member further averred that on the
date of plaintiff's accident, he "performed work on behalf of
[defendant] at [defendant's] request, and under [defendant's]
direction and control" from 8:00 a.m. until 4:00 p.m. During that
time, plaintiff reported to defendant's supervisor. Further,
defendant's foreman directed plaintiff as to where and how to
direct traffic. According to the Managing Member, defendant "had
sole control over the details of the work performed by [plaintiff,]
. . . [and] would instruct [p]laintiff where and how to direct
traffic, depending on the progress and status of the milling
work[.]" The Managing Member asserted the Township "maintained
no control, direction, or supervisory authority over [p]laintiff's
work at the [s]ite." Further, "[defendant] had the power and
authority to recall [plaintiff] for his services, or discontinue
his services if they were no longer needed or were found by
[defendant] to be unsatisfactory." Defendant admitted Pedeiro was
the employee in the construction vehicle with a "bucket" that
allegedly struck plaintiff.
Defendant reimbursed the Township for plaintiff's wages. The
Managing Member averred in an affidavit the Township would send
defendant invoices enumerating the hours plaintiff worked "along
with the fees and hourly wages charged." Defendant would then pay
the Township for plaintiff's services.
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In addition to the pleadings, defendants submitted a letter
from the third party administrator for Central Jersey Joint
Insurance Fund, the workers' compensation program of which the
Township was a member. The third party administrator sent the
letter to defendant's insurer. The letter stated that because
plaintiff "was working on behalf of both the Township of Woodbridge
and [defendant], [the] matter [was] a dual employment case of
which [defendant was] responsible for 50% of all paid on the case."
On appeal, plaintiff makes substantive and procedural
arguments. Substantively, plaintiff contends the facts defendant
established did not support the trial court's finding that
plaintiff was a special employee of defendant; and the court
erroneously relied on defendants' misstatements concerning payment
of plaintiff's workers' compensation benefits in making its
determination. Plaintiff asserts the court made procedural errors
by accepting defendants' "material statement of facts" rather than
a "statement of material facts" required by Rule 4:46-2(a); by
deciding the motion without insisting defendants provide the
Township's position on plaintiff's employment classification; and
by deciding the motion before discovery was complete.
Plaintiff's procedural arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We note, however, that plaintiff himself could have readily refuted
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most of the material facts developed by defendants, particularly
those directly bearing on who plaintiff reported to while working
at the construction site, who supervised him, and who determined
the circumstances under which he worked while directing traffic
at the construction site.
Appellate courts "review[] an order granting summary judgment
in accordance with the same standard as the motion judge." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). We "review
the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and,
if not, whether the moving party is entitled to summary judgment
as a matter of law." Ibid. (citing Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial
court's determination that a party is entitled to summary judgment
as a matter of law is not entitled to any "special deference," and
is subject to de novo review. Cypress Point Condo. Ass'n v. Adria
Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).
We review a trial court's denial of a motion for
reconsideration under an abuse of discretion standard. Davis v.
Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010) (citing
Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div.
1997)), aff'd in part and rev'd in part on other grounds, 209 N.J.
269, 277 (2012).
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The New Jersey Workmen's Compensation Act, N.J.S.A. 34:15-1
to -69.3, provides employees with guaranteed recovery from their
employers for workplace injuries, in exchange for a waiver of the
right to sue their employer. N.J.S.A. 34:15-8. For purposes of
workers' compensation, a worker may have two employers, "both of
whom may be liable in compensation." Hanisko v. Billy Casper Golf
Mgmt., 437 N.J. Super. 349, 360 (App. Div. 2014) (quoting
Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div.
1988), certif. denied, 115 N.J. 59 (1989)). In such situations,
recovery of workers' compensation from one employer "bars the
employee from maintaining a tort action against the other for the
same injury." Ibid. (quoting Anthenuisse, supra, 229 N.J. Super.
at 402).
A "special employment relationship" where the "special
employer" is also responsible for worker's compensation exists
"[w]hen a general employer lends an employee to a special
employer," and "(a) [t]he employee has made a contract 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." Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430
(App. Div. 1967) (quoting 1A Larson, Workmen's Compensation
(1966), § 48.00, at 710 (now codified as 7 Lex K. Larson, Larson's
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Workers' Compensation § 67.01 (2017) [hereinafter Larson])). In
determining whether a special employee relationship has developed,
courts also consider "whether the special employer (1) pays the
lent employee's wages, and (2) has the power to hire, discharge
or recall the employee." Ibid. (citation omitted).
When a court weighs these five factors to determine whether
a special employment situation exists, "[n]o single factor is
'necessarily dispositive, and not all five must be satisfied in
order for a special employment relationship to exist.'" Walrond
v. Cnty. of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006)
(quoting Marino v. Ind. Crating Co., 358 F.3d 241, 244 (3rd Cir.
2004)). "Generally, 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
v. G.E. Capital Corp., 139 N.J. 110, 116 (1995)).
In the case before us, the undisputed facts on the motion
record, deemed admitted by virtue of plaintiff's non-response,
established the five factors. As to the first factor, though
defendant contracted directly with the Township for the assignment
of police officers for Extra Duty Services, "[t]he consent [for
contracting] may be implied from the employee's acceptance of the
special employer's control and direction" of the employee. Larson,
supra, § 67.02[3]. Furthermore, where an "employee 'knew he would
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be hired out to special employers, and accepted such employers
just as he accepted the general employer . . . [the employee]
intended to have two employers[.]'" Blessing, supra, 94 N.J.
Super. at 434 (quoting Chickachop v. Manpower, Inc., 84 N.J. Super.
129, 137 (Law Div. 1964)). Here, plaintiff signed up for Extra
Duty Services knowing the Township would hire him out to a second
employer and would expect him to perform his duties for that
employer. Therefore, as asserted by defendants, "[p]laintiff
reported to the [s]ite in acceptance of the assignment as an Extra
Duty Officer to perform work on behalf of [defendant]."
The second factor requires "the work being done is essentially
that of the second employer." Larson, supra, § 67.01[1].
Defendants asserted "[p]laintiff directed traffic . . . for
[defendant's] benefit." In that regard, when requesting officers
from the Township, defendant had "specified exactly how many
officers[] [and] patrol cars were needed, the time, location, and
date[s]" they were needed, and "exactly what services were required
and what duties and responsibilities were expected to be
performe[d]." Plaintiff was directing traffic for the benefit of
defendant as defendant performed milling services on county roads.
The need for someone to direct traffic was directly related to
defendant's work, and as such is essentially the work of defendant.
See Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 453-54,
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458 (App. Div. 1989) (determining an off-duty police officer
assigned to work for a private business had dual employment with
the private business and the Police Department, even though his
assignment "was serving . . . private interest[s] as well as the
public interest").
The third and perhaps most significant factor is that the
special employer has the right to control the details of the work.
Here, according to defendants' undisputed statement of facts,
"[p]laintiff directed traffic in accordance with [defendant's]
request, directions, and for [defendant's] benefit. During this
assignment, [defendant] had sole control over the [p]laintiff with
respect to directions, instructions, and ability to discontinue
his services if they were no longer needed or were unsatisfactory."
Upon arrival at the site, plaintiff would check in with defendant's
supervisor. Defendant also "had a foreman on site who directed
[plaintiff] as to where and how to direct traffic." The directions
would "depend[] on the progress and status of the milling work
[being] performed[.]" These facts adequately demonstrate control
over plaintiff's work. While defendant may not have directly
controlled exactly how plaintiff chose to direct traffic,
defendant did have adequate control over when and where plaintiff
performed his services.
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The next factor is whether the special employer "pays the
lent employee's wages[.]" Blessing, supra, 94 N.J. Super. at 430.
In this case, "[f]ollowing the completion of the assignment,
[defendant] paid [p]laintiff's wages indirectly through payment
of an invoice fee to the Township." Plaintiff argues this does
not satisfy the requirement that the special employer pay the
wages, because the special employer is paying the Township, who
later pays plaintiff. However, the special employer does not need
to directly pay the special employee for a special employment
relationship to exist. See Kelly v. Geriatric & Med. Servs.,
Inc., 287 N.J. Super. 567, 577 (App. Div.) (finding direct payment
would be more persuasive, but is not necessary for a finding of
special employment), aff'd 147 N.J. 42 (1996). Particularly
telling in this arrangement is the note at the bottom of the
invoices from the Township to defendant: "Please pay on time. The
officers do not get paid until I receive the payment from you."
Lastly, the special employer must have "the power to hire,
discharge or recall the employee" in order for there to be a
special employment relationship. Blessing, supra, 94 N.J. Super.
at 430. Defendant had such authority as to its project. Defendant
was able to "discontinue [plaintiff's] services if they were no
longer needed or were unsatisfactory."
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Based on defendants' undisputed statement of material facts,
plaintiff was acting as a special employee of defendant at the
time of the accident. Because plaintiff recovered worker's
compensation benefits from the Township, plaintiff is barred from
seeking further recovery through suit against defendant.
Plaintiff places much significance on defendant's alleged
denial that he was an employee for purposes of workers'
compensation. Plaintiff alleges defendant has denied the
Township's claim for contribution in the workers' compensation
action. This is not material to the action before us. As
previously noted, in the context of this case, recovery of workers'
compensation from one employer (the Township) bars the employee
from maintaining a tort action against the other. Hanisko, supra,
437 N.J. Super. at 360.
The trial court properly granted defendants' summary judgment
motion on the record before it. The trial court also properly
denied plaintiff's motion for reconsideration. We agree with the
trial court that plaintiff's reconsideration motion was an attempt
to expand the summary judgment record and reargue the summary
judgment motion. The trial court did not abuse its discretion by
declining to consider on a reconsideration motion material that
plaintiff could have submitted in opposition to the summary
judgment motion.
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Affirmed.
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