Gil v. Clara Maass Medical Center

OSTRER, J.A.D.,

concurring.

I concur in the court’s judgment and join in all but part 111(A)(2) of its opinion. This is an insurance coverage case. The issue before the court is whether Dr. Copur was an insured under any of Clara Maass’s policies. These policies covered employees, but not independent contractors off the payroll. So, the task turned to ascertaining whether Dr. Copur was an “employee.”

Plaintiff made a fundamental error in contending the control test and relative nature of the work test inform the meaning of the policy term. As the court ably explains, plaintiff was looking for the definition of “employee” in the wrong place. The answer lies in the language of the insurance agreements, in particular, their definition of “employee.” The parties to the policy were free to include, or not, a variety of persons who labor in the hospital. In this case, Dr. Copur and other independent contractors not on the payroll were left out. Thus, it is irrelevant whether Dr. Copur satisfied common law definitions of an employee, either by the control test or by the relative nature of the work test.

In a variety of legal settings, courts have grappled with whether a worker is an “employee.” The answer affects workers’ entitlements and companies’ obligations under remedial social legislation and third-party rights to compensation. See, e.g., Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-51, 123 S.Ct. 1673, 1677-81, 155 L.Ed.2d 615, 623-27 (2003) (applying the common law definition of employee in a ease involving Americans with Disabilities Act where Congress did not expressly define the term); Estate of Kotsovska ex rel. Kotsovska v. Liebman, 221 N.J. 568, 116 A.3d 1 (2015) (adopting a “hybrid” approach for determining a worker’s status under the Workers’ Compensation Act); Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 106 A3d 449 (2015) (concluding that an employee under the Wage Payment Law should be defined according to the so-called “ABC test” under N.J.S.A. 43:21-19(i)(6)); Basil v. Wolf, 193 N.J. 38, 63-66, 935 A.2d 1154 (2007) (utilizing a control test to determine that an insurer was not vicariously liable for the negligence of the physi-eian it hired to examine a claimant); Lowe v. Zarghami, 158 N.J. 606, 614-24, 731 A.2d 14 (1999) (applying relative nature of the work test to determine that a physician under the circumstances was a public “employee” for purposes of the Tort Claims Act); Carpet Remnant Warehouse, Inc. v. N.J. Dep’t of Labor, 125 N.J. 567, 580-87, 593 A.2d 1177 (1991) (applying the “ABC test” to determine whether carpet installers’ services constituted employment, making them eligible for unemployment compensation).

The analysis is context-specific. To determine whether a worker is an employee, a court must look to the specific statute’s terms and purpose or the underlying goals of the common law doctrine. See, e.g., D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 122 n.7, 927 A.2d 113 (2007) (stating that “in each setting-specific analysis, what matters most is that an individual’s status be measured in the light of the purpose to be served by the applicable legislative program or social purpose to be served”).

In this ease, the court’s analysis lacks essential context. Though the majority notes that its reasoning is dicta, I am concerned it may be misread to indicate that, putting the insurance coverage issue aside, Clara Maass should not be vicariously liable for Dr. Copur’s actions because, according to the majority, it fails the control test and relative nature of work test. I am not so sure. For example, I cannot agree that an obstetric surgeon’s use of a hospital’s operating room is “purely incidental to his treating of patients.” However, I will not analyze each of the factors that the majority considered, because my point is that we need not, and indeed should not, go there.

More broadly, I am wary of applying our traditional common law standards to increasingly complex and novel workplace relationships. Were Clara Maass’s vicarious liability the issue, we would also likely consider whether it should be grounded on principles of apparent agency. See, e.g., Estate of Cordero ex rel. Cordero v. Christ Hosp., 403 N.J.Super. 306, 312-18, 958 A.2d 101 (App. Div. 2008); Arthur v. St. Peter’s Hosp., 169 N.J.Super. 575, 581, 405 A.2d 443 (Law Div. 1979); see also Marjorie A. Shields, Annotation, Liability of Hospital or Sanitarium for Negligence of Independent Physician or Surgeon — Exception Where Physician Has Ostensible Agency or “Agency by Estoppel”, 64 A.L.R. 6th 1249 (2017); Restatement (Second) of Torts § 429 (1965) (“One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”).

We might also consider whether the traditional control and relative nature of work tests should be modernized to account for the shift in the nature of workplace relationships in our society, which affects far more than the hospital or, more broadly, the health care sector. See U.S. Gov’t Accountability Office, GAO-15168R, Contingent Workforce: Size, Characteristics, Earnings, and Benefits, 4, 12 (2015) (available at http://www.gao.gov/assets/670 A569766.pdf) (most broadly defined, contingent workers — that is, “temporary, contract or other forms of non-standard employment arrangements in which they may not receive employer-provided retirement and health benefits, or have safeguards such a job-leave under the Family Medical Leave Act” — made up 35.3 percent of all employed workers in 2006 and 40.4 percent in 2010). No doubt, many workers desire independent contractor or other nonstandard employment relationships. However, others are left with little choice but to accept them.

Over fifty years ago, Judge Conford recognized the limitations of the control test in workers compensation cases where “it is not in the nature of the work for the manner of its performance to be within the hiring party’s direct control .... ” Marcus v. Eastern Agricultural Ass’n, 58 N.J.Super. 584, 597, 157 A.2d 3 (App. Div. 1959) (Conford, J.A.D., dissenting), rev’g on dissent, 32 N.J. 460, 161 A.2d 247 (1960). The nature of work is changing. The advent of the so-called “gig economy,” and the increasing use of “independent contractors,” threaten to leave growing numbers of workers unprotected by the remedial statutes designed to shield them from the vagaries of the workplace. See Miriam A. Cherry & Antonio Aloisi, “Dependent Contractors” in the Gig Economy: A Comparative Approach, 66 Am. U. L. Rev. 635 (2017); Orly Lobel, The Gig Economy & The Future of Employment and Labor Law, 51 U.S.F. L. Rev. 51, 61 (2017) (observing that, “in the Gig Economy, the distinction between independent contractor and employee continues to present definitional challenges and reveals the pervasive practical difficulty in applying” traditional, multi-factor tests). These new relationships also threaten to shield businesses from liability for the harm those workers caused while laboring on their behalf. Agnieszka A. McPeak, Sharing Tort Liability in the New Sharing Economy, 49 Conn. L. Rev. 171, 188-215 (2016) (describing how Uber and other companies in the “sharing economy” that rely almost entirely on independent contractors present challenges in the application of tort law). Scholars have suggested that our common law needs to adapt in other ways to assure compensation for wrongs committed by persons holding one of these new positions. See, e.g., id. at 215-25.

The traditional common law tests, as applied by the majority, may prove to be anachronistic. But that may be remedied. After all, “[o]ne of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court.” State v. Culver, 23 N.J. 495, 505, 129 A.2d 715, cert. denied, 354 U.S. 925, 77 S.Ct. 1387, 1 L.Ed.2d 1441 (1957). “The common law has always had the inherent capacity to develop and adapt itself to current needs .... ” Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 43-44, 141 A.2d 276 (1958); see also White v. N. Bergen Twp., 77 N.J. 538, 551-52, 391 A.2d 911 (1978). Another court, facing this issue more squarely than our panel, should consider whether the present circumstances warrant such an adaptation.

As it is, this ease does not require that we apply the traditional control test and relative nature of work test. Therefore, I would not.