Estate of Jack D'Avila by Tiago D'avila, Administrator Ad , 442 N.J. Super. 80 ( 2015 )


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  •                     NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4439-11T2
    A-4705-11T2
    A-4713-11T2
    ESTATE OF JACK D'AVILA,
    by TIAGO D'AVILA,
    APPROVED FOR PUBLICATION
    Administrator ad Prosequendum;
    and DENISE ROCHA, individually,              August 10, 2015
    Plaintiffs-Respondents/              APPELLATE DIVISION
    Cross-Appellants,
    v.
    HUGO NEU SCHNITZER EAST; SIMS
    HUGO NEU CORPORATION; HUGO NEU
    CORPORATION; LYNCH, GIULIANO &
    ASSOCIATES, P.A.; JERSEY CITY
    MEDICAL CENTER, PATRICIA A.
    SCHRADER, M.D.1; AMY R. CUTSHALL,
    R.N.; CHRISTINE PANGILINAN, R.N.;
    CONCHITA GARCIA, R.N.; and
    LIBERTY SURGICAL ASSOCIATES,
    Defendants-Respondents,
    and
    FEMCO MACHINE COMPANY,
    Defendant-Appellant/
    Cross-Respondent,
    and
    RIVERSIDE ENGINEERING,
    Defendant,
    1
    Because all claims against Dr. Schrader have been satisfied, she
    did not participate in these appeals.
    and
    HUGO NEU SCHNITZER EAST; SIMS
    HUGO NEU CORPORATION; and HUGO
    NEU CORPORATION,
    Defendants/Third-Party
    Plaintiffs-Respondents,
    v.
    SIMPSON & BROWN, INC.,
    Third-Party Defendant/
    Fourth-Party Plaintiff-
    Respondent/Cross-Appellant,
    v.
    AMERICAN HOME ASSURANCE COMPANY,
    Fourth-Party Defendant-
    Respondent,
    and
    WILLIS NORTH AMERICA, INC.
    (as successor-in-interest to
    Fleet Insurance Services, Inc.),
    Fourth-Party Defendant-
    Respondent.
    ___________________________________
    CONTINENTAL CASUALTY COMPANY,
    Plaintiff-Respondent,
    v.
    AMERICAN HOME ASSURANCE COMPANY,
    Defendant-Respondent,
    and
    2
    A-4439-11T2
    CRUM & FORSTER SPECIALTY INSURANCE
    COMPANY,
    Defendant-Appellant,
    and
    SIMPSON & BROWN, INC.,
    Intervenor-Defendant/
    Respondent.
    ___________________________________
    CONTINENTAL CASUALTY COMPANY,
    Plaintiff-Respondent,
    v.
    AMERICAN HOME ASSURANCE COMPANY,
    Defendant-Appellant,
    and
    CRUM & FORSTER SPECIALTY INSURANCE
    COMPANY,
    Defendant-Respondent,
    and
    SIMPSON & BROWN, INC.,
    Intervenor-Defendant/
    Respondent.
    ____________________________________
    Argued November 17, 2014    -   Decided August 10, 2015
    Before   Judges     Sabatino,   Simonelli,   and
    Guadagno.
    3
    A-4439-11T2
    On appeal from the Superior Court of New
    Jersey, Law Division, Middlesex County, Docket
    Nos. L-3208-07 and L-3380-09.
    Joseph P. LaSala and Richard J. Williams, Jr.,
    argued the cause for appellant Femco Machine
    Company in A-4439-11 (McElroy, Deutsch,
    Mulvaney & Carpenter, LLP, attorneys; Mr.
    LaSala and Michael J. Marone, of counsel; Mr.
    Williams and Mr. Marone, on the briefs).
    Michael B. Zerres argued the cause for
    respondents/cross-appellants Estate of Jack
    D'Avila and Denise Rocha, individually, in A-
    4439-11 (Blume, Donnelly, Fried, Forte, Zerres
    & Molinari, PC, attorneys; Mr. Zerres, on the
    briefs).
    Scott C. Arnette and Ronald Betancourt argued
    the   cause   for  respondent/cross-appellant
    Simpson & Brown in A-4439-11 (Betancourt, Van
    Hemmen, Greco & Kenyon, LLC and Arnette Law
    Firm, LLC, attorneys; Mr. Arnette, of counsel;
    Mr. Betancourt and Virginia A. Harper, on the
    briefs).
    Gerard M. Green argued the cause for
    respondents Hugo Neu Schnitzer East, Sims Hugo
    Neu Corporation, and Hugo Neu Corporation in
    A-4439-12 (Law Offices of Gerard M. Green,
    attorneys; Mr. Green, on the briefs).
    Catherine J. Flynn Tafaro argued the cause for
    respondents Amy R. Cutshall, R.N. and Jersey
    City Medical Center in A-4439-11 (Carroll,
    McNulty & Kull, LLC, attorneys; Ms. Flynn
    Tafaro, of counsel; Brad Baldwin, on the
    brief).
    Michael R. Ricciardulli argued the cause for
    respondent Conchita Garcia, R.N. in A-4439-11
    (Ruprecht Hart Weeks & Ricciardulli, LLP,
    attorneys; Mr. Ricciardulli, of counsel and
    on the brief; Sarah J. Gurka, on the brief).
    4
    A-4439-11T2
    Abraham E. Havkins (Havkins Rosenfeld Ritzert
    & Varriale, LLP) argued the cause for
    appellant Crum & Forster Specialty Insurance
    Company in A-4705-11 and as respondent in A-
    4713-11.
    Nancy Lem argued the cause for respondent
    Continental Casualty Company in A-4705-11
    (Colliau Elenius, attorneys; Ms. Lem, on the
    brief).
    Michael A. Spero argued the cause for
    appellant American Home Insurance Company in
    A-4713-11, and as respondent in A-4439-11 and
    A-4705-11 (Eckert, Seamans, Cherin & Mellott,
    LLC, attorneys; Mr. Spero, of counsel and on
    the brief).
    Margaret T. Korgul argued the cause for
    respondent Willis North America, Inc. in A-
    4713-11 (K&L Gates, LLP, attorneys; Anthony
    P. La Rocco, of counsel; Ms. Korgul and
    Matthew S. Sachs, on the brief).
    Ryan Milun argued the cause for respondent
    Simpson & Brown, Inc. in A-4713-11 (The
    Killian Firm, P.C., attorneys; Mr. Milun, on
    the brief).
    The opinion of the court was delivered by
    SABATINO, P.J.A.D.
    This mammoth set of consolidated appeals and cross-appeals
    involves over a dozen parties. The matter concerns both a wrongful
    death case against multiple defendants tried over four months
    before a jury, and a host of related insurance coverage issues
    decided by the trial court.
    The   litigation   stems   from   a   workplace   accident    on     a
    construction site, in which a subcontractor's employee was struck
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    A-4439-11T2
    on the head by an unsecured metal ladder and became paralyzed.
    Following that traumatic injury, the worker received negligent
    medical treatment, including the deprivation of sufficient oxygen,
    causing him brain damage. He died three years later.
    The worker's estate filed suit against the job site's owner
    that served as the project's general contractor, several of the
    worker's   post-accident    medical       providers,      and    various      other
    parties.    The    owner   filed   separate          claims   for     contractual
    indemnification against both the worker's own employer and against
    an installation subcontractor, alleging that each of them bore
    responsibility for the hazard posed by the unsecured ladder.
    Additionally,   several    insurers       and   an   insurance      broker    whose
    policies were implicated by the accident sought coverage rulings.
    Because the exclusive remedy provision within the worker's
    compensation    statute,   N.J.S.A.       34:15-8,     does     not   preclude       a
    negligent employer's liability for contractual indemnification,
    the trial court allowed counsel for decedent's employer to present
    evidence and arguments at the jury trial.             However, the court did
    not allow the jury to consider allocating any percentage of fault
    to the employer on the verdict form, despite the requests of
    several parties, including the employer itself.
    The jurors returned a multi-million-dollar verdict, which
    they allocated in percentages among the owner, the installation
    6
    A-4439-11T2
    subcontractor, and one of the defendant medical providers.                        The
    trial court separately disposed of the related insurance coverage
    issues without conducting any evidentiary proceedings.
    Among the myriad issues presented to us, we have been asked
    to consider questions relating to whether, and to what extent, an
    injured worker's employer may participate in a jury trial of an
    underlying   tort     action,     in   a   situation       where     the   factual
    determinations could trigger the employer's duty to indemnify a
    defendant in the tort case.
    We hold that the trial court erred here in allowing the
    decedent's   employer    to     participate    in    the    jury     trial      while
    simultaneously      disallowing    the     jury     from    ascertaining         that
    employer's percentage of fault, if any, on the verdict form.                         In
    light of that error, we remand this matter to the trial court to
    consider   the   need   for     further    proceedings      relating       to    such
    potential allocation of fault to the decedent's employer.
    The need for such further proceedings in this case will depend
    upon whether the job site owner is continuing to press its claims
    of   contractual     indemnification       against     both    the     decedent's
    employer and the installation subcontractor.                If so, additional
    fact-finding might be required to sort out the priority or division
    of the respective payment obligations of the two subcontractors
    as co-indemnitors.       Such supplemental fact-finding shall not,
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    A-4439-11T2
    however, disturb the verdict already obtained by plaintiffs.                  We
    reject the installation subcontractor's demand for a new jury
    trial on all issues, particularly since that appellant failed to
    object at trial to the employer's omission from the verdict form.
    We also remand this matter for the trial court's further
    consideration of certain discrete insurance coverage issues.
    In all other respects, we affirm the trial court's rulings
    and the final judgment predicated on the jury's verdict, thus
    denying relief on the plethora of other issues raised on appeal
    in the parties' twenty-three briefs.2
    I.
    We derive the following pertinent facts from the evidence
    adduced during the lengthy jury trial.         The trial spanned nearly
    forty intermittent days between October 2011 and January 2012.                We
    describe the facts in considerable detail because those details
    are   legally   significant   to   many   of   the   assorted   issues        of
    liability,   indemnification,      and   insurance   coverage   raised        on
    appeal.
    The Job Site and the Parties' Relationships
    The decedent, Jack D'Avila, was a laborer employed by third-
    party defendant Simpson & Brown, Inc. ("S&B"), a subcontractor on
    2
    We were informed several days ago that Femco recently reached a
    settlement with plaintiffs, a development which resolves some of
    the issues raised on appeal.
    8
    A-4439-11T2
    a job site in Jersey City.       The project involved the installation
    of a 700-foot "mega shredder" at the facility of defendant, Hugo
    Neu Corporation.3
    Hugo Neu is a metal recycling company.        At the Jersey City
    location, Hugo Neu processed scrap metal and loaded it onto ships.
    The mega shredder being installed on the site required a concrete
    foundation, referred to in the record as the "mill base" or
    "shredder base." The shredder's motor required a separate concrete
    foundation, referred to in the record as the "motor base."
    Although Hugo Neu disputed at trial its actual role concerning
    the project, the proofs reflect that the company served as its own
    general contractor.       Hugo Neu obtained the necessary permits,
    contracted with a variety of companies to perform the necessary
    work,   created     a   master   schedule,   and   exercised     "general
    supervisory authority" over the project.
    Hugo Neu contracted with decedent's employer, S&B, to serve
    as a subcontractor for concrete foundations and structural work.
    Hugo Neu separately arranged for another subcontractor, defendant
    Femco Machine Company ("Femco"), to assemble and install the
    shredder.   Hugo Neu had worked with both S&B and Femco in the
    3
    The pleadings also identify affiliated companies of this
    defendant, specifically Hugo Neu Schnitzer East and Sims Hugo Neu
    Corporation.   We shall refer to these entities collectively as
    "Hugo Neu."
    9
    A-4439-11T2
    past.    Another   subcontractor,   defendant   Lynch,    Giulano        &
    Associates, P.A. ("LGA"), was hired to perform surveying work on
    site.
    [At the direction of the court, the published
    version of this opinion omits this portion of
    Part I, which describes the ladder safety
    requirements   and   practices    among   the
    construction defendants.]
    The Decedent's Accident
    The accident occurred on May 18, 2005.     The trial testimony
    centered around determining who had placed ladders against the
    motor base in the days leading up to the accident, a time frame
    when Femco was preparing for installation of the shredder.
    [At the direction of the court, the published
    version of this opinion omits Section 1 of
    Part   I,  which   describes  the   testimony
    regarding the placement of the ladder in the
    days leading up to and on the day of the
    accident.]
    2. The Ladder's Impact with Decedent
    At approximately 3:45 p.m. on May 18, a ladder that had been
    leaning against the motor base fell and hit decedent on the head.
    Many of the witnesses agreed that the ladder most likely belonged
    to S&B, because Femco did not have ladders that long, and Hugo Neu
    did not provide ladders to the contractors.
    Femco's employee John Padchin observed the accident while
    climbing the ladder placed against the mill base.        He testified
    that he heard a "scraping" noise and observed the ladder on the
    10
    A-4439-11T2
    motor base move as a strong "gust of wind" came through.         Some
    witnesses recalled that the weather had been nice that day, and
    not particularly windy.   However, others recalled it being a windy
    day, and most agreed that the site tended to be windy due to its
    location along the Hudson River.
    S&B prepared an incident report, simply noting that the
    accident had occurred and the nature of the accident.   Nearly one
    year later, an investigator for S&B prepared a somewhat more
    detailed report indicating that decedent had been working in "a
    shallow trench performing foundation work" at the time of the
    accident.   There was a "taller foundation next to the trench."
    Leaning up against the foundation was a twenty-foot extension
    ladder, which was not being used.
    According to the report, the ladder belonged to S&B and had
    been used by S&B personnel the previous day.      The investigator
    noted that "[t]he ladder was tied off at the bottom, but was not
    tied off at the top, since the workers the previous day had
    finished with the ladder and untied it before they came down."
    The report reflects that S&B's project superintendent told the
    investigator it was "not a particularly windy day, but for some
    reason the ladder slipped from its position and came down on
    [decedent]," and "[t]he ladder was still tied at the bottom when
    it fell."
    11
    A-4439-11T2
    [At the direction of the court, the published
    version of this opinion omits this portion of
    Part I, which describes the liability experts'
    competing opinions at trial.]
    Decedent's Injuries and Medical Treatment
    After he was struck by the ladder, decedent fell down, and
    various workers on the construction site told him to remain where
    he    was    until    medical   help   arrived.     He   was   conscious      and
    communicating, and apologized for getting hurt.                The remaining
    workers returned to their work.
    Decedent was transported to defendant Jersey City Medical
    Center ("JCMC") for medical treatment.            In the emergency room, he
    was able to speak and to move his hands, feet, arms, and legs,
    albeit with difficulty, and with some loss of feeling.
    Decedent had suffered spinal fractures at disc levels C2 and
    C7.    At level C3-C4, he had suffered bruising and swelling of the
    spinal cord and a bulging disc.              These injuries were causing
    neurological damage, including partial paralysis, with the right
    side more affected than the left.            By the time decedent was seen
    by a neurosurgeon, he could not move his right hand or leg.
    The neurosurgeon performed a discectomy, removing the bulging
    disk    at    C3-C4    to   prevent    possible   worsening    of    the    cord
    compression.         He also put in a plate at C3-C4, to stabilize
    decedent's spine at that level.              The medical records show no
    reported complications with the surgery.
    12
    A-4439-11T2
    Post-surgery, decedent was sent to the surgical Intensive
    Care Unit, where he was under the supervision of defendant Patricia
    A. Schrader, M.D., a trauma surgeon who also was director of the
    unit.   Defendant Christine Pangilinan, R.N., was decedent's nurse
    from 7:00 a.m. to 7:00 p.m. on May 19.   Defendant Conchita Garcia,
    R.N., was his nurse from 7:00 p.m. on May 19 to 7:00 a.m. on May
    20.   Defendant Amy R. Cutshall, R.N., was his nurse from 7:00 a.m.
    to 7:00 p.m. on May 20.
    At the start of Nurse Pangilinan's shift, the doctor's orders
    were for decedent to receive nothing by mouth ("NPO").     However,
    decedent was later allowed ice chips only.    At 10:15 a.m. on May
    19, Dr. Schrader evaluated decedent and ordered that he could have
    clear liquids and one can of a nutritional supplement three times
    per day.   Dr. Schrader also ordered that decedent be advanced to
    regular food "as tolerated."
    As to the paralysis, Dr. Schrader's notes from the May 19
    evaluation reflect that decedent was able to flex both elbows, as
    well as his left foot and left hip.      However, decedent was not
    able to flex his right foot or right hip.
    On the morning of May 20, Dr. Schrader visited with decedent
    and spoke with Nurse Cutshall about his condition.    Dr. Schrader
    noted that decedent's spinal cord injury appeared to be progressing
    to quadriplegia, albeit incomplete.   She also noted that decedent
    13
    A-4439-11T2
    had lost the ability to move his fingers in order to utilize the
    patient-controlled analgesia device (the "PCA").
    Dr.    Schrader     had     concerns       about     decedent     possibly
    experiencing respiratory difficulty, so she ordered a baseline
    measure of his arterial blood gas, and that he be observed for
    "increased accessory muscle use" when breathing, which would be
    an early sign of respiratory distress.                  She did not consider
    intubating decedent at that time, however, because he was breathing
    on his own and had a good cough.
    Dr. Schrader stated that she would not intubate a patient
    unless it was necessary for the patient to breathe, or to protect
    an unconscious person's airway.            She explained that there were
    risks to intubation, including possibly worsening the spinal cord
    injury with the movements necessary to achieve intubation, as well
    as infection or pneumonia.
    Nevertheless,     to     minimize    the    risk    of    aspiration,     Dr.
    Schrader declared decedent NPO based upon swallowing difficulties
    reported and demonstrated by Nurse Cutshall.                  Dr. Schrader also
    ordered a swallowing evaluation, and that a feeding tube be made
    available for possible placement into the patient.
    At 9:55 a.m., about forty minutes after Dr. Schrader had
    completed   rounds     with    decedent,    he    experienced       respiratory
    distress.   Nurse Cutshall heard him coughing, so she went to check
    14
    A-4439-11T2
    on him.   Concerned that he may be choking, the nurse suctioned his
    airway, but it did not help.       She also called for the doctor, and
    Dr. Schrader returned to decedent's room.
    At approximately 10:00 a.m., decedent's oxygen saturation was
    down to 31 percent, whereas most people are at 97 to 100 percent,
    and he had a heart rate of 45 beats per minute, indicating sinus
    bradycardia.       Dr. Schrader ordered that a call be placed for
    anesthesia service to intubate decedent, and also prepared to
    intubate him herself if necessary.
    At 10:05 a.m., a nurse anesthetist was able to intubate
    decedent on an emergent basis.            A note written by Dr. Schrader
    indicated that "blood tinged, beige material" was suctioned from
    decedent's   airway    at   the   time    of   intubation.     Dr.   Schrader
    testified at her deposition that there were different possible
    sources of the beige material, including mucous from the lung.
    On   manual    ventilation,    decedent's     oxygen    saturation     was
    brought up to 100 percent, and his heart rate brought up to 118
    beats per minute.     However, he had suffered five-to-seven minutes
    of oxygen desaturation, resulting in "anoxic brain injury."
    Decedent's Remaining Life and Demise
    Decedent spent the rest of his life in various healthcare
    facilities, and he remained on a ventilator except for one week.
    15
    A-4439-11T2
    He died in July 2008, at age fifty-one, after he suffered a
    downturn and his family decided to discontinue the ventilator.
    In their testimony, decedent's wife and children described
    their losses due to his passing.       They presented expert testimony
    on damages, which was rebutted by experts presented by S&B.
    The   medical   experts   disagreed   as   to   whether   decedent's
    respiratory distress occurred due to damage to his phrenic nerves,
    caused by his spinal cord injury, or due to aspiration.         They also
    disagreed as to whether the nurses should have advised Dr. Schrader
    sooner about decedent's difficulties with swallowing and operating
    the PCA, and whether Nurse Cutshall had erred by demonstrating
    decedent's swallowing difficulties during Dr. Schrader's rounds,
    thereby adding more fluids and increasing the risk of aspiration.
    The experts further disagreed as to whether Dr. Schrader had acted
    appropriately in not intubating decedent until he suffered the
    respiratory event, or whether she should have electively intubated
    him earlier, during rounds.
    Finally, the medical experts contested whether the initial
    injury or the period of oxygen desaturation had caused decedent's
    complete quadriplegia.    They specifically differed as to whether
    the period of oxygen desaturation had caused decedent's permanent
    brain damage, or whether that damage occurred during a later event,
    16
    A-4439-11T2
    when decedent suffered an extremely high fever of over 105 degrees
    as a result of damage to his central nervous system.
    II.
    The Tort Action
    In March 2007, Tiago D'Avila ("Tiago"), then-guardian for his
    father Jack D'Avila, and Denise Rocha, Jack D'Avila's wife, filed
    a complaint in the Law Division in the underlying tort litigation.
    Their complaint was amended multiple times.         Ultimately, the tort
    action named as defendants: Hugo Neu; Femco; Riverside Engineering
    ("Riverside"); LGA; JCMC; Dr. Schrader; Nurse Cutshall; Nurse
    Pangilinan;   Nurse    Garcia;    and    Liberty    Surgical    Associates
    ("Liberty Surgical"), one of Dr. Schrader's employers.
    Plaintiffs asserted claims of construction negligence and
    medical malpractice, wrongful death, and a loss of consortium
    claim for Rocha.    Riverside was later dismissed from the case on
    summary judgment, a dismissal that no one contests on appeal.
    Defendant Hugo Neu filed a cross-claim against defendant
    Femco arising out of their contractual relationship.               Hugo Neu
    also filed a third-party complaint against S&B for contribution
    and indemnification, and for breach of contract.
    S&B   denied   liability    and    asserted   that   all   claims     for
    contribution were barred by the exclusive remedy provision of the
    Workers' Compensation Act ("the WCA"), N.J.S.A. 34:15-8.           S&B also
    17
    A-4439-11T2
    asserted a counterclaim and cross-claims for contribution and
    indemnification.
    S&B   filed   a    fourth-party    complaint      against     its    insurer,
    American Home Assurance Company ("American Home") and Willis North
    America,   Inc.,   as    successor     in   interest    to   Fleet       Insurance
    Services, LLC ("Willis").       S&B alleged breach of fiduciary duty
    and negligence against Willis, its insurance broker, for failing
    to obtain the coverage S&B had requested. S&B also asserted breach
    of contract and declaratory judgment claims against American Home,
    seeking primary and non-contributory insurance coverage for Hugo
    Neu under its policy.
    The Declaratory Judgment Coverage Actions
    In a related action, Hugo Neu's insurer, Continental Casualty
    Company    ("Continental"),     filed       a   complaint    for    declaratory
    judgment against American Home and Femco's insurer, Crum & Forster
    ("C&F"), seeking a declaration that those two insurance companies
    were responsible for providing coverage for defense and indemnity
    to Hugo Neu in the underlying litigation.
    Both American Home and C&F asserted cross-claims against each
    other and counterclaims against Continental.             S&B intervened as a
    defendant in the coverage action and filed an answer with cross-
    claims.
    18
    A-4439-11T2
    Pretrial Motions and Proceedings
    On February 5, 2010, the trial court ruled on a summary
    judgment motion filed by Continental.       The court issued an oral
    opinion, ruling that Hugo Neu was an additional insured under both
    the American Home and C&F policies.        In that same ruling, the
    court consolidated the underlying tort case with the declaratory
    judgment action.   Several days later, the court entered an order
    granting summary judgment to Continental as to the discrete issue
    of Hugo Neu's additional insured status, and consolidating the two
    cases.
    After   Continental   moved   again   for   summary   judgment        on
    different grounds, the court4 issued an oral opinion on June 9,
    2010, ruling that both American Home and C&F were responsible for
    providing primary, non-contributing insurance to Hugo Neu.
    On July 23, 2010, the second judge ruled on several other
    pretrial motions. As it relates to the present appeals, the court:
    (1) issued orders consistent with the June 9, 2010 rulings granting
    summary judgment to Continental against American Home and C&F,
    requiring them to "provide primary and non-contributing insurance
    coverage (both defense and indemnification) up to the full limits
    of coverage called for" pursuant to the construction contracts
    4
    A different judge ("the second judge") heard this particular
    motion.
    19
    A-4439-11T2
    between   Hugo    Neu   and,    respectively,       S&B    and    Femco;   and    (2)
    dismissed claims against S&B, except that it required S&B to
    provide "a complete defense and full indemnification" to Hugo Neu
    pursuant to their contract, "so long as [Hugo Neu] was not found
    to be solely responsible for Jack D'Avila's accident[,]" and
    providing "that this contractual indemnification provision between
    Hugo [Neu] and [S&B] shall not be triggered until the insurance
    coverage provided by [S&B] has been exhausted."                  American Home and
    C&F moved for reconsideration, which was denied.
    In the meantime, Continental moved for the appointment of
    defense counsel and to compel American Home and C&F to pay Hugo
    Neu's defense fees and expenses.              By order dated January 7, 2011,
    the court denied that motion without prejudice.
    After pretrial conferences, a third successive judge who was
    assigned to this case ("the trial judge") heard and decided various
    motions   in   limine.         Among    other    things,    the    judge    granted
    plaintiffs'      application     to     bar     argument    that     decedent     was
    comparatively negligent and denied a motion to preclude S&B from
    participating in the litigation.              The judge reserved decision on
    the question of whether the jury could consider S&B's negligence.
    The Trial and The Verdict
    Before    the   trial     began,    plaintiffs'       counsel    renewed     his
    objection to the court allowing the jury to consider the negligence
    20
    A-4439-11T2
    of S&B.   The court clarified that the parties could refer to S&B's
    negligence in their opening statements to the jury, as it related
    to the question of whether the negligence of the "construction
    defendants" (i.e., Hugo Neu, Femco, and LGA) was a proximate cause
    of decedent's injuries, but the jury would not be asked to assess
    the   comparative    negligence    of     S&B    on   the   verdict     sheet.
    Maintaining its prior ruling, the court denied a motion by Dr.
    Schrader and JCMC to disallow S&B's participation at trial.
    At the close of evidence, the parties made a variety of
    motions, including motions for directed verdict, which the court
    denied.     The court also again considered whether S&B should be
    placed on the verdict sheet, and determined that it should not.
    S&B renewed its motion for a directed verdict, which the court
    denied.
    The jury found that Hugo Neu and Femco were each negligent,
    and that their negligence was a proximate cause of decedent's
    injury.     The jury found no negligence on the part of LGA.               With
    respect to the job site accident, the jury allocated 75% liability
    to Femco and 25% liability to Hugo Neu.
    As for the medical defendants, the jury concluded that Dr.
    Schrader,    Nurse   Cutshall,    and    Nurse   Garcia     were   negligent.
    However, the jury also found that only Dr. Schrader's negligence
    had both increased the risk of harm posed by decedent's pre-
    21
    A-4439-11T2
    existing condition, and had been a substantial factor in causing
    his ultimate injury.        The jury concluded that Nurse Cutshall's and
    Nurse Garcia's negligence had increased the risk of harm, but had
    not been a substantial factor in causing decedent's ultimate
    injury.     The jury found no negligence on the part of Nurse
    Pangilinan.
    Finally, the jury specifically found that 77% of decedent's
    ultimate injury would have occurred even if the medical treatment
    had been proper.        Thus, it assessed Dr. Schrader as the cause of
    23% of decedent's injury.
    The net effect of these determinations, as molded by the
    court, was to hold Femco 57.75% liable for the judgment, Hugo Neu
    19.25% liable, and Dr. Schrader 23% liable.
    As   to     damages,    the   jury    awarded     $2,249,668    in   medical
    expenses,      $152,196     in   lost   income,   and    $3,800,000    in    pain,
    suffering, disability, impairment, and loss of enjoyment of life.
    Decedent's wife (Rocha) was awarded: $50,000 for the loss of
    consortium; $54,397 in past losses; and $334,150 in future losses.
    Decedent's children (daughter Tienne and son Tiago) were each
    awarded: $49,417 in past losses and $303,559 in future losses.
    Finally, the jury concluded that Hugo Neu and Femco had not
    proven    that    Dr.     Schrader's      negligence    was   an    intervening,
    superseding cause of decedent's ultimate harm.
    22
    A-4439-11T2
    Post-Trial Motions
    After several parties filed post-trial motions, the trial
    judge issued a written letter opinion dated April 12, 2012.                        In
    that decision, the judge reaffirmed the pretrial rulings that
    obligated American Home and C&F to provide Hugo Neu with primary,
    non-contributing insurance, and required those insurers to pay the
    judgment against Hugo Neu.         The judge also denied Femco's motions
    to   dismiss    Hugo    Neu's      claim     against   it    for    contractual
    indemnification, and further denied Femco's motion for judgment
    notwithstanding the verdict or, alternatively, a new trial.
    The judge further denied Dr. Schrader's motion to mold the
    verdict so that only the so-called "construction defendants" the
    jury had found to be at fault (i.e., Hugo Neu and Femco) were
    liable.    In addition, the judge required Femco to indemnify Hugo
    Neu pursuant to their contract; and suspended prejudgment interest
    on two-thirds of the award for medical expenses.
    The Final Judgment, As Amended
    The court entered an initial final judgment, in accordance
    with the verdict and its post-trial rulings, and entered orders
    on the post-trial motions, consistent with its written opinion.
    Pursuant   to   the    judgment,    the     total   award,   with   prejudgment
    interest, amounted to $8,534,726.27.
    23
    A-4439-11T2
    Meanwhile, the court granted Continental's motion for payment
    of interim defense fees and expenses, which was opposed by C&F and
    American Home.
    On June 11, 2012, the court entered an amended judgment,
    adding modest taxed costs of $1,230, increasing the aggregate
    judgment to $8,535,956.27, with $4,929,514.75 allocated to Femco,
    $1,643,171.58 allocated to Hugo Neu, and $1,963,269.94 allocated
    jointly to Dr. Schrader, Liberty Surgical, and JCMC.
    The trial court thereafter entered a second amended judgment,
    requiring American Home and C&F to provide primary and non-
    contributory coverage for the judgment against Hugo Neu, and
    requiring C&F to provide primary and non-contributory coverage for
    the judgment against Femco.
    The Myriad Appeals
    The trial court stayed the judgment, conditioned upon the
    posting of a supersedeas bond.    Appeals were subsequently filed
    by, respectively: plaintiffs, Femco, S&B, C&F, and American Home.
    Plaintiffs   subsequently   settled    with   Dr.   Schrader     and     her
    employers, Liberty Surgical and JCMC.
    III.
    Femco, which bears the largest share of liability under the
    jury's verdict, raises on appeal several interrelated issues of
    negligence and contractual indemnification.
    24
    A-4439-11T2
    Specifically, Femco argues that the trial court erred by:
    (1) allowing decedent's employer, S&B, to participate in the trial
    while disallowing the jury to consider S&B's alleged negligence;
    (2) ruling that Femco was obligated to indemnify Hugo Neu for Hugo
    Neu's own negligence.     Femco further argues that the jury's
    apportionment of fault against it was against the weight of the
    evidence.   The remaining issues raised on appeal by Femco were
    resolved through its recent settlement with plaintiffs.
    Meanwhile, the issues raised by S&B in its cross-appeal
    include an argument that the trial court erred by denying S&B's
    motion for partial summary judgment, and holding that S&B is liable
    to Hugo Neu for contractual indemnification.
    The first of these issues —— concerning the appropriate role
    of decedent's employer in the jury trial —— raises important
    questions of law and procedure about the employer's inclusion or
    omission from the verdict form.    We devote the following analysis
    in this published portion of our opinion to that thorny issue.
    Because these issues concerning the employer's role at trial
    are closely intertwined with the issues of negligence liability
    and contractual indemnification that also have been raised, we
    include them within our analysis in this section of the opinion
    as well.
    25
    A-4439-11T2
    A.
    The WCA, N.J.S.A. 34:15-1 to -142, "represents the bargain
    that   was     struck   between      employers      and     employees    concerning
    workplace injuries, whereby employers shoulder the expense of
    workers' injuries arising out of the performance of work duties."
    Basil v. Wolf, 
    193 N.J. 38
    , 53 (2007).                    The WCA "provide[s] a
    method of compensation for the injury or death of an employee,
    irrespective      of    the   fault    of    the    employer     or    contributory
    negligence and assumption of risk of the employee."                       Harris v.
    Branin Transp., Inc., 
    312 N.J. Super. 38
    , 46 (App. Div.), certif.
    denied, 
    156 N.J. 408
    (1998).
    As part of the bargain struck by the Legislature in the WCA,
    N.J.S.A. 34:15-8 directs that an employer may not be sued by an
    employee or an employee's surviving relatives for negligence that
    caused   injury    or    death    to   the   employee.         Instead,       workers'
    compensation      is    the    exclusive     remedy,        absent    proof    of      an
    intentional wrong.       Ramos v. Browning Ferris Indus. of S. Jersey,
    Inc., 
    103 N.J. 177
    , 183 (1986); McDaniel v. Man Wai Lee, 419 N.J.
    Super. 482, 489-90 (App. Div. 2011).                 Thus, plaintiffs in this
    case could not proceed with a claim against S&B, decedent's
    employer.
    Case law establishes that the WCA does not, however, preclude
    an   injured    employee      from   pursuing      claims    against    third-party
    26
    A-4439-11T2
    tortfeasors.    Instead, "an employee retains the right to pursue
    available common-law remedies for liability against third-parties,
    so long as recoveries are not duplicated."              
    McDaniel, supra
    , 419
    N.J. Super. at 491 (citing Schweizer v. Elox Div. of Colt Indus.,
    
    70 N.J. 280
    , 287-88 (1976)). Thus, plaintiffs could and did pursue
    claims against alleged other tortfeasors, including Femco and Hugo
    Neu.
    Consistent    with   the   WCA's       exclusive     remedy     proviso,
    defendants could not seek contribution from S&B under the Joint
    Tortfeasors Contribution Law ("the JTCL"), N.J.S.A. 2A:53A-1 to -
    5.   "Because the employer cannot be a joint tortfeasor, it is not
    subject   to   the   provisions   of    the   [JTCL],     and   a   third-party
    tortfeasor may not obtain contribution from an employer, no matter
    what may be the comparative negligence of the third party and the
    employer."     
    Ramos, supra
    , 103 N.J. at 184; accord Stephenson v.
    R.A. Jones & Co., 
    103 N.J. 194
    , 199 (1986); 
    McDaniel, supra
    , 419
    N.J. Super. at 492-93.
    Hence, in the context of a plaintiff-employee's negligence
    claims against other tortfeasors relating to workplace injuries,
    the jury cannot be asked to apportion fault to the plaintiff's own
    employer, even if that seems like "a more equitable manner of
    presenting th[e] matter to the jury[.]"          Jarrett v. Duncan Thecker
    27
    A-4439-11T2
    Assocs.,    175     N.J.   Super.   109,   115    (Law   Div.   1980);       accord
    
    Stephenson, supra
    , 103 N.J. at 199.
    On the other hand, "indemnification of a third party by an
    employer pursuant to an express contract does not disturb the
    delicate balance struck by the Legislature in the WCA.                    Nothing
    in the WCA precludes an employer from assuming a contractual duty
    to indemnify a third party through an express agreement."                    
    Ramos, supra
    , 103 N.J. at 191.        Accord Mautz v. J.P. Patti Co., 298 N.J.
    Super. 13, 19-21 (App. Div.), certif. denied, 
    151 N.J. 472
    (1997);
    Port Auth. of N.Y. & N.J. v. Honeywell Protective Serv., Honeywell,
    Inc., 
    222 N.J. Super. 11
    , 19-20 (App. Div. 1987).
    Thus,   it    was   permissible     here    for   Hugo   Neu     to    seek
    indemnification from S&B, pursuant to their contract, for any of
    plaintiffs' damages caused by S&B or Hugo Neu.             The only legal bar
    to such a claim would be if Hugo Neu were found 100% liable,
    because the Legislature has disallowed indemnification agreements
    imposing liability where the damages in question were caused by
    the indemnitee's "sole negligence."          See N.J.S.A. 2A:40A-1.5
    5
    N.J.S.A. 2A:40A-1 states:
    A    covenant,     promise,    agreement    or
    understanding in, or in connection with or
    collateral to a contract, agreement or
    purchase order, relative to the construction,
    alteration, repair, maintenance, servicing,
    or security of a building, structure, highway,
    28
    A-4439-11T2
    1.
    Published cases in New Jersey have provided mixed signals
    about how the court should treat an employer named as a third-
    party defendant, for contractual indemnification purposes, in a
    tort action brought by an injured employee who has demanded a
    trial by jury.   In particular, the published cases have not been
    uniform concerning whether the employer should be permitted to
    participate in the jury trial and, if so, whether and how the
    employer's alleged negligence should be addressed in the jury
    charge and in the verdict form.
    In White v. Newark Morning Star Ledger, 
    245 N.J. Super. 606
    (Law Div. 1990), the plaintiff, an employee of Colin Service
    Systems, Inc. ("Colin"), was injured while working on the premises
    of defendant Newark Morning Star Ledger ("Ledger").   
    Id. at 608.
    railroad,    appurtenance    and    appliance,
    including moving, demolition, excavating,
    grading,   clearing,   site   preparation   or
    development   of   real   property   connected
    therewith, purporting to indemnify or hold
    harmless the promisee against liability for
    damages arising out of bodily injury to
    persons or damage to property caused by or
    resulting from the sole negligence of the
    promisee, his agents, or employees, is against
    public policy and is void and unenforceable;
    provided that this section shall not affect
    the validity of any insurance contract,
    workmen's compensation or agreement issued by
    an authorized insurer.
    [(Emphasis added).]
    29
    A-4439-11T2
    Colin agreed in its contract with Ledger to indemnify Ledger for
    any injury or death "in any way relating to the performance by
    Colin . . . [of the contract] . . . except for such injury . . .
    due to the affirmative negligent acts of Ledger[.]"      
    Id. at 610.
    The plaintiff sued only Ledger, alleging negligence, and Ledger
    filed a third-party complaint against Colin for a defense and
    indemnification.   
    Id. at 609.
       Colin moved for summary judgment
    to dismiss Ledger's third-party complaint, and the Law Division
    judge denied that motion.   
    Id. at 609,
    613.
    The Law Division judge in White recognized that if both Ledger
    and Colin were found to be negligent and to have proximately caused
    the accident, then "Ledger as the third-party tortfeasor [would]
    be solely responsible" for the plaintiff's injuries.     
    Id. at 611.
    Hence, the case required an allocation of fault as between Ledger,
    the    defendant/indemnitee,     and    Colin,   the     third-party
    defendant/indemnitor.   
    Ibid. The judge further
    noted that there
    was a genuine issue, at least on the facts presented in the summary
    judgment record, as to "whether the cause of [the] plaintiff's
    injury was solely caused by Ledger's negligence."      
    Id. at 613.
    The judge in White further concluded that, in deciding "how
    best to allocate the liability as between Ledger, to the extent
    that liability results from Ledger's affirmative negligent acts,
    and Colin[,]"
    30
    A-4439-11T2
    [t]he logical and most efficient means of
    achieving that result will be by proceeding
    as this case is presently structured, with
    both Ledger and Colin as parties. That will
    enable the same jury to fix the damages due
    from Ledger to [the plaintiff], while also
    fixing the amount due to Ledger pursuant to
    the   indemnification   provisions of   the
    [contract].
    [
    Id. at 611.
    ]
    The   judge     added    that    "[a]ny     claimed     confusion    between     [the
    plaintiff's] right to recover from Ledger and Ledger's right to
    recover    from     Colin       can    be     avoided    by    instructions       and
    interrogatories to the jury."                 
    Id. at 613.
        The judge stopped
    there, however.         He did not indicate exactly how the jury should
    be instructed, or how the special interrogatories on the verdict
    form should be framed.
    Our own court grappled with similar issues four years later
    in Kane v. Hartz Mountain Industries, Inc., 
    278 N.J. Super. 129
    ,
    134 (App. Div. 1994), aff'd o.b., 
    143 N.J. 141
    (1996).                            The
    plaintiff in Kane was a construction worker who was injured on the
    job, and he sued Hartz Mountain Industries, Inc. ("Hartz"), the
    general contractor, and others, alleging negligence.                   
    Ibid. The plaintiff's employer,
    Eastern Steel Erectors ("Eastern"), had
    agreed    to    indemnify       the   steel      fabricator   with   whom   it    had
    contracted, Howell Steel, Inc. ("Howell"), "and the 'owner' of the
    project from any losses or claims arising out of Eastern's work
    31
    A-4439-11T2
    on the project."     
    Id. at 135.
      Therefore, Howell joined Eastern
    as a third-party defendant, seeking indemnification pursuant to
    their contract.    
    Ibid. The trial judge
    in Kane allowed Eastern
    to "participate" in the jury trial of
    plaintiff's case [but not present closing
    arguments], but he ruled that Eastern's
    negligence would be submitted to the jury only
    if the jury first returned a verdict finding
    that neither the Hartz defendants nor [another
    defendant] were negligent, and that Howell was
    100% negligent.    In that event, the court
    would require the jury to decide whether any
    negligence was attributable to Eastern, in
    order to determine the enforceability of the
    Eastern-Howell indemnification agreement.
    [
    Id. at 146.
    ]
    Having been so instructed, the jury returned a no-cause verdict.
    
    Id. at 136.
    On the plaintiff's appeal in Kane, we concluded there had
    been error in the jury charge on the effect of Occupational Health
    and Safety Administration ("OSHA") regulations that warranted
    reversal.     
    Id. at 140-44.
      We also found reversible error in the
    trial court's treatment of Eastern.     
    Id. at 144-47.6
      We observed
    that "it was neither necessary nor appropriate to permit Eastern
    to participate in the presentation of [the] plaintiff's case."
    6
    We rejected the plaintiff's separate contentions of error on an
    evidentiary issue and regarding comparative negligence, see 
    id. at 147-51,
    which are not pertinent here.
    32
    A-4439-11T2
    
    Id. at 146.
       Given that the nature of the allegations in the case
    involved    "industry-wide      or     regulatory   safety      standards,"          we
    concluded that Eastern "would not be prejudiced by a separate
    trial on the indemnification issue."            
    Ibid. Hence, we ordered
    in Kane that, on remand, "trial of the
    third-party    claim    should    be    severed,    as    unquestionably         any
    liability of Howell is not so independent of the failure of Eastern
    to abide by safety standards as to bring about the result that
    Howell might be held liable without a similar finding of fault on
    the part of Eastern."          
    Ibid. We also observed
    that "[i]n any
    event, Eastern, merely by reason of its status as indemnitor of
    Howell, should not be accorded the advantage of participating at
    trial.     A bare agreement to indemnify does not carry with it the
    obligation to defend, and it does not provide a right to control
    the litigation."    
    Id. at 146-47
    (emphasis added).              In making this
    observation, we did not expressly repudiate White, a case which
    we noted earlier in the opinion had been relied upon by the trial
    court.   
    Id. at 136.
    Several defendants in Kane, including Hartz, Howell, and
    Eastern, petitioned for and were granted certification by the
    Supreme Court.      The Court affirmed our disposition in Kane,
    "substantially    for    the    reasons      expressed"    in    the    published
    opinion.     
    Kane, supra
    , 143 N.J. at 142.          In doing so, the Court
    33
    A-4439-11T2
    provided no additional commentary and did not shed any further
    light on the employer-participation question.           Ibid.7
    A     year   after    Kane,   we    confronted    similar    issues        of
    indemnification in Bradford v. Kupper Associates, 
    283 N.J. Super. 556
    (App. Div. 1995), certif. denied, 
    144 N.J. 586
    (1996).                      In
    that case, the plaintiffs were employed by Agate Construction
    Company ("Agate").         
    Id. at 563.
          One plaintiff was killed, and
    another injured on the job when both inhaled poisonous gas in the
    Tuckerton sewer system.        
    Ibid. They sued the
    Tuckerton Borough
    Municipal Utilities Authority ("TMUA"), and Kupper Associates
    ("Kupper"), the project engineer, with Agate named a third-party
    defendant based upon its contractual duty of indemnification.
    
    Ibid. The jury returned
    a no-cause verdict, which we affirmed on
    appeal.    
    Id. at 563-64.
        However, we reversed the court's pretrial
    ruling that Agate was not required to indemnify Kupper and the
    TMUA.     
    Id. at 564,
    582-86.
    Construing      the     indemnification       provision     within     the
    construction contract in Bradford, we held that the contract
    "clearly did not require Agate to indemnify only for its own
    negligence," but rather imposed a broader obligation.             
    Id. at 584.
    On the other hand, we recognized that the agreement did not require
    7
    The Court's very recent discussion of other aspects of Kane in
    Fernandes v. DAR Development Corp., __ N.J. __ (2015), did not
    address the employer-participation issue.
    34
    A-4439-11T2
    Agate to indemnify either TMUA or Kupper "solely based upon their
    exclusive negligence."       
    Ibid. We also were
    persuaded that the
    plaintiffs' claims in Bradford "arose or resulted from" the work,
    as was required under the contract to trigger such a duty to
    indemnify.    
    Id. at 585.
    Turning to the troublesome question of the appropriate role
    of the plaintiffs' employer, Agate, in the fact-finding process,
    we   suggested   in   Bradford   that      Agate   might   be    permitted        to
    participate in the trial.            We ultimately did not reach that
    question     conclusively,   however,       because   of   the    distinctive
    procedural posture in which the case had been litigated and the
    appeal had arisen.     Instead, we enforced Agate's contractual duty
    to indemnify TMUA, without requiring any further factual findings
    on remand by a jury or otherwise:
    The matter may be best resolved, as TMUA and
    Kupper sought here, by keeping the indemnitor
    in the case on the indemnification claim. But
    we need not now decide what the judge should
    have done had he denied Agate's motion.
    Rather, we have to determine what we must do
    in light of the fact that he granted the
    motion, and we must do so in view of the
    established record. Of particular importance
    are the [jury's] determinations that neither
    TMUA nor Kupper were found liable, although
    Kupper was found to be negligent.
    Here, Agate chose not to participate by
    moving for a dismissal of the third-party
    claims. Rather, it sought to be relieved of
    an obligation to become involved in the trial
    proceedings.
    35
    A-4439-11T2
    In these circumstances, taking account of
    the   proofs   that   Agate    violated   OSHA
    regulations, and given a jury verdict finding
    neither defendant liable for plaintiffs' work-
    related injuries, we are unprepared to permit
    Agate to re-litigate the issue of negligence
    or whether either TMUA or Kupper can be said
    to be solely negligent.
    [Id. at 586 (emphasis added).]
    Thus, under the particular circumstances presented in Bradford,
    we only remanded the case for "consideration of all the issues
    regarding attorneys' fees and costs for which TMUA and Kupper are
    entitled under the indemnification clause."         
    Id. at 587.
         The
    panel's comment in Bradford about how the participation question
    "may be best resolved," 
    id. at 586,
    although it is merely dicta,
    arguably suggests a willingness to reconsider Kane's declared
    prohibition   on   an   employer/indemnitor's   participation   in   the
    negligence trial.       We are mindful, however, that the panel's
    comment in 1995 about that subject preceded the Supreme Court's
    1996 unelaborated affirmance of Kane.      We also are mindful that
    our opinion in Bradford did not discuss Kane or, for that matter,
    White, regarding the participation issue.
    In a later tort case that we reviewed on appeal, Leitao v.
    Damon G. Douglas, Company, 
    301 N.J. Super. 187
    (App. Div.), certif.
    denied, 
    151 N.J. 466
    (1997), we noted there that the Law Division
    had severed at trial a defendant general contractor's third-party
    36
    A-4439-11T2
    complaint for contractual indemnification against the plaintiff's
    employer.     
    Id. at 190.
          After the jury found the contractor 51%
    negligent and the employee 49% negligent, the trial court addressed
    the   indemnification        questions.        The        court     ruled       that     the
    plaintiff's       employer     was    obligated      to     fully      indemnify         the
    defendant, despite the plaintiff's comparative fault.                         
    Id. at 190-
    91.   The court did so because the accident "arose out of" the
    employer's       subcontract    and    was    not   caused        by    the     defendant
    indemnitee's "sole negligence."              
    Id. at 190,
    195.           Our appellate
    opinion in Leitao did not consider, however, whether the employer
    should have been permitted to participate in the jury trial, or
    whether,    in    retrospect,    the    severance     of     the       indemnification
    issues was proper.       Our opinion did not cite to Kane or White and
    only cited Bradford with regard to a different issue.                         
    Id. at 192.
    This line of published cases arguably leaves some residual
    uncertainty about the proper way to proceed in these jury trial
    situations where a tort defendant has a fact-dependent claim for
    contractual indemnification against the plaintiff's employer, and
    about the breadth of the approach we adopted in Kane.                         We are now
    asked to consider in the present case —— one of truly massive
    scope —— whether the impetus for a unitary proceeding here is
    stronger than it was in Kane.
    37
    A-4439-11T2
    The dimensions of Kane are distinguishable from the present
    case, which is not just limited to construction accident defendants
    and   negligence     claims    but   also    includes       medical    malpractice
    defendants     and   claims.     Here,      unlike    in    Kane,   there   was       no
    significant     risk    that   the   employer,       S&B,   would     "control    the
    litigation."     
    Kane, supra
    , 278 N.J. Super. at 147.                  In essence,
    S&B was, metaphorically, another fish in a very large pond.
    The sheer number of defendants and claims in this case compels
    us to consider whether the approach adopted in Kane should be
    inflexibly followed in large-scale cases, or whether, conversely,
    the interests of judicial efficiency should take precedence and
    warrant an exception to Kane.
    2.
    A few other state courts and treatise writers have grappled
    with this perplexing issue.          Our research has identified several
    instances in which the plaintiff's employer took part in the jury
    trial of the tort case, despite the workers' compensation laws of
    the applicable state, in order to adjudicate third-party claims
    brought   by     a     tort    defendant     against        that    employer      for
    indemnification.8
    8
    See, e.g., Giguere v. Detroit Edison Co., 
    319 N.W.2d 334
    (Mich.
    Ct. App. 1982) (allowing such indemnification claims to be tried
    before the jury along with the plaintiff employee's negligence
    claims against the defendant indemnitee, affirming the trial
    38
    A-4439-11T2
    On the other hand, some jurisdictions have ruled that, under
    an   express   contract   of   indemnity   running   from   a   plaintiff's
    employer to a third party, "the third party cannot insist that the
    employer and the employer's insurer be joined in the plaintiff's
    action for purposes of enforcement of the right of indemnity."                 11
    Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law
    § 121.04[5] (Matthew Bender, Rev. Ed. 2014) (emphasis added)
    (citing Gibbs v. Carolina Power & Light Co., 
    144 S.E.2d 393
    (N.C.
    1965) and Baldwin Co. v. Ceco Corp., 
    659 S.W.2d 941
    (Ark. 1983)).
    The Larson treatise recommends that "[s]ince the indemnity
    claim is by definition a separate legal cause, and, unlike the
    employer's contributory negligence, is not intertwined with the
    tortious incident itself, every precaution should be taken to see
    court's denial of the employer's severance motion seeking a
    separate trial on the indemnification issues); Frederickson v.
    Alton M. Johnson Co., 
    402 N.W.2d 794
    (Minn. 1987) (permitting the
    negligence and the indemnification issues to be tried together,
    but granting a directed verdict to the employer before submitting
    the case to the jury); Severino v. Schuyler Meadows Club, 
    639 N.Y.S.2d 869
    (N.Y. App. Div. 1996) (affirming a judgment following
    a combined jury trial on negligence and indemnification issues,
    in which the jury found the defendant/indemnitee general
    contractor 20% at fault for the accident and the plaintiff's
    employer 80% at fault); Berardi v. Getty Ref. & Mktg. Co., 
    435 N.Y.S.2d 212
    (N.Y. Sup. Ct. 1980) (similarly involving a combined
    jury trial).   By contrast, in Levine v. Shell Oil Company, 
    321 N.Y.S.2d 81
    (N.Y. 1971), the parties stipulated that the
    plaintiffs' negligence claims against the defendant would be tried
    before a jury, and that the defendant's claims for indemnification
    against the plaintiffs' employer were to be separately resolved
    by the trial judge alone. 
    Id. at 84.
    39
    A-4439-11T2
    that the employee's own . . . rights are not prejudiced by the
    interjection of this [indemnity] factor into his or her case."
    
    Ibid. "This kind of
    tangle is at least partly avoided by [an
    approach] which sees to it that the first step in the process, the
    action   by    the   employee   plaintiff,      goes     forward      without     the
    complicating presence of the parties and issues involved in the
    indemnity problem."       
    Id. at §
    121.04[7] (emphasis added).
    That said, the Larson treatise further recognizes that the
    problem cannot always be "easily sidestepped," and that there can
    be circumstances in which the negligence and indemnity issues
    might need to be tried together.          
    Ibid. As an illustration,
    the
    treatise referred to situations in which an insurer for the
    employer/indemnitor would not provide coverage for that obligation
    unless the employer's negligence is proven to have caused injury.
    In that scenario, the employer's carrier "would have an interest
    in   proving    that    the   employer    had    not    in     fact   negligently
    contributed to the employee's injuries."               
    Ibid. 3. The preferred
       solution   to    this    quandary       concerning       the
    employer/indemnitor's proper role at trial, at least in a case
    with large dimensions like the present one, is by no means obvious.
    There are competing policies to consider.
    40
    A-4439-11T2
    On    the    one     hand,    we   recognize     the    important     workers'
    compensation policies that underlie the exclusive remedy feature
    of the WCA.        We also are mindful of the related desire not to
    entangle     an    injured    worker's         employer     indiscriminately           in
    negligence       actions    that    the    employee       brings    against     other
    tortfeasors.       Those concerns seemingly weigh in favor of holding
    separate trials or hearings on indemnification issues.
    On    the    other    hand,    our   system    of      justice   also    favors
    consistency of outcomes, efficiency, and the avoidance of the
    needless consumption of time and resources to litigation.                        See,
    e.g., Olivieri v. Y.M.F. Carpet, Inc., 
    186 N.J. 511
    , 522 (2006);
    State v. Gonzalez, 
    75 N.J. 181
    , 190, 193 (1977).                   Those offsetting
    considerations weigh in favor of attempting to resolve indemnity
    issues, where possible, within the same trial or before the same
    fact-finder.
    We suspect that, in many instances, such as the present case,
    a general contractor or project owner routinely will insist on its
    subcontractors entering into broad indemnification agreements that
    strive to insulate the owner or general contractor from liability
    when one of the subcontractors' employees is injured on the job
    site.   Depending on the contractual language utilized, the proper
    application of those indemnity agreements may require factual
    findings as to:         whether the employee's injury "arose out of" the
    41
    A-4439-11T2
    work encompassed by the indemnity contract; whether the worker's
    employer was at least in part at fault for the accident; and
    whether the defendant indemnitee was not itself 100% at fault.
    These factual issues can be very closely intertwined with the
    liability proofs and the findings that a jury must make in the
    underlying negligence case.
    Where the parties in the negligence case have not agreed to
    a   bench   trial,     the    jury's   paramount   function   as     fact-finder
    generally    ought     to    include   those   factual    issues   relative         to
    contractual indemnification.            It could be exceedingly difficult
    for a trial judge (who would not, of course, be privy to the jury's
    deliberations) to attempt to adjudicate the proofs in an indemnity
    proceeding in a manner that would respect the jury's findings but
    still resolve the open factual questions.
    For instance, what if the judge, upon hearing the evidence
    in a "round two" indemnification trial or proceeding, perceives
    from the testimony that the co-defendant seeking indemnity was not
    negligent or only slightly negligent, despite the jury's earlier
    finding     imposing    the    greatest   share    of    liability    upon    that
    defendant?     Or, what if the judge perceives that the defendant
    seeking indemnification from the plaintiff's employer bears a much
    higher percentage of fault in causing the accident than the level
    42
    A-4439-11T2
    ascribed    by    the   jurors?    This    predicament,   and   the   risk      of
    inconsistent outcomes, is surely troublesome.
    Moreover, a separate trial or proceeding on indemnification
    will invariably consume lawyer time and expense, expert time and
    expense, witness time, and other resources already expended in the
    earlier negligence trial.         Why should a plaintiff, having already
    tried the tort case to verdict, need to become entangled in another
    proceeding, one that only involves the business-driven contractual
    agreements between his or her employer and another private party?
    We have considered the possibility that the factual proofs
    might be presented simultaneously before the jurors for purposes
    of the negligence claims and defenses, and for the judge, for
    purposes of the indemnity issues.             Such a "split fact-finder"
    approach still can pose several disadvantages, however.               For one
    thing, the indemnitor or the indemnitee might have demanded a jury
    on the contractual issues.         Even if no such jury demand were made,
    the employer/indemnitor has an advocacy interest in presenting
    evidence,        cross-examining     opposing    witnesses,      interposing
    evidentiary objections, and making arguments during the course of
    the trial.       It might be difficult to explain to jurors what role
    counsel for the employer is actually performing at such a trial
    before "dual" decision-makers.
    43
    A-4439-11T2
    In addition, the judge serving as the fact-finder on the
    indemnity issues may have questions or need clarification about
    testimony as the case unfolds.    This will place the judge in the
    difficult position of either letting those queries go unanswered,
    or interfering —— perhaps too often —— with counsel's presentation
    of the case to the jurors.
    Taking all of these competing concerns into account, we hold
    that the sounder practice —— in a context such as the present one
    involving claims even more extensive than those in Kane and an
    unusually lengthy trial —— is to try the negligence and contractual
    indemnification issues simultaneously before the jury.    After the
    evidence has been presented at such a trial, the court should
    issue carefully-crafted jury instructions, addressing the pivotal
    factual issues that the jury must decide.    The verdict form will
    likewise need to be carefully designed, so as to only have the
    jurors address the question of the employer's potential fault when
    it is absolutely necessary to do so.
    For example, the jury must be instructed that they should
    only consider the employer's negligence if they first determine
    that the conduct of the defendant seeking indemnity is not the
    sole cause of the accident.      Jurors will be presumed to follow
    such instructions faithfully.    See Belmont Condo. Ass'n, Inc. v.
    Geibel, 
    432 N.J. Super. 52
    , 97 (App. Div.), certif. denied, 216
    44
    A-4439-11T2
    N.J. 366 (2013).    In this way, the unified trial process will not
    subvert the policies and objectives underpinning the exclusive
    remedy provision of the WCA.         This unitary fact-finding model
    avoids discordant results and may conserve the resources of the
    parties and the court.
    The jury should be given appropriate instructions about the
    presence of the employer's counsel in the trial, explaining that
    he or she is participating solely with respect to certain factual
    issues that the jury might need to address.         The jury should not
    be given an "ultimate outcome" instruction divulging that the
    plaintiff cannot recover any damages from the employer, for we
    suspect such an instruction would likely engender confusion and
    speculation.
    The judge must mold the verdict after it is issued, so that
    the   plaintiff's   damages   are   not   reduced   by   the   employer's
    percentage share of fault, if any.          Instead, the non-employer
    defendants must fully bear any liability owed to the plaintiff.
    Thus, for example, if the jury finds defendant "A" 60% at fault,
    another defendant "B" 20% at fault, and the plaintiff's employer,
    defendant "C," 20% at fault, with no comparative fault accorded
    to plaintiff, the employer's 20% share must be divided among the
    other defendants in a molded judgment that assigns a 75% share to
    defendant "A" and 25% to defendant "B."
    45
    A-4439-11T2
    We stop short, however, of prescribing that such a combined
    jury trial on negligence/contractual indemnification issues also
    address discrete factual issues bearing upon insurance coverage,
    an option that was suggested to us at oral argument by one of the
    insurance counsel.        We also reject the related suggestion that the
    jury should answer special interrogatories on the verdict form
    resolving any additional factual disputes that relate to insurance
    coverage.
    In order to provide meaningful responses to such insurance-
    related queries, the fact-finder presumably would want the benefit
    of the advocacy of counsel who are respectively seeking or opposing
    coverage.     Such advocacy would call for insurance counsel to
    participate in the trial itself, to present and contest evidence,
    and to make closing arguments to the jury.                     The jury would
    therefore need to understand coverage counsel's role in the case
    and,    presumably,      the     identities    of     their   clients.       That
    participation would undoubtedly risk speculation by jurors about
    the    existence   and    levels    of    insurance    coverage    available       to
    defendants.        It    could   easily    taint    the   jury's   findings        on
    negligence and the amount of any damages awarded.                  See N.J.R.E.
    411 (generally excluding proof of liability insurance coverage in
    cases involving negligence or other wrongful conduct).                   There is
    also a real danger that the insurance coverage issues could
    46
    A-4439-11T2
    dominate    the   jury   trial,    thereby      misdirecting     the          focus     of
    plaintiff's negligence case.
    We   therefore    limit    our        prescriptive     holding          to     the
    participation of counsel who represent the parties on the issues
    of    contractual    indemnification         (e.g.,   as    between       a    general
    contractor or owner and a subcontractor).                   We do not endorse
    expanding the trial further to involve insurance issues or coverage
    counsel.    The coverage issues must instead be decided by the court
    or, where a jury demand has been made by the insurers or the
    insureds, by a separate jury.
    We recognize that the procedural solution we have endorsed
    is not perfect.      Even so, we consider it the most superior of the
    possible alternatives, at least for cases such as the present one,
    involving a significantly greater scope than Kane.               That said, the
    parties are free to stipulate to a different process, provided
    that the trial judge in his or her discretion finds such a proposed
    alternative sensible.
    We suspect that, as a result of settlements with some parties
    and    dispositive    motion     practice,      the   need    for     a       combined
    tort/contractual indemnification trial may prove to be infrequent.
    In any event, we hope the direction that we have provided here
    will be useful in those future situations when they do arise.
    Although it is not our prerogative to do so, the Supreme Court may
    47
    A-4439-11T2
    also wish to revisit whether the approach in Kane should be
    followed in less complex settings.
    B.
    Before we apply these principles to the trial that occurred
    here, certain threshold matters must be addressed to provide a
    proper context.       We first consider Hugo Neu's indemnification
    agreements with, respectively, Femco and S&B, and the trial court's
    interpretation of those agreements.
    1.
    In Femco's subcontract, it broadly agreed to indemnify Hugo
    Neu for "any and all claims . . . arising, or allegedly arising,
    from and out of (a) the work incident to or resulting from any and
    all operations performed by [Femco] under or pursuant to any of
    the provisions of [its subcontract]."                 Femco also agreed to
    indemnify Hugo Neu for claims arising out of "(b) any injury to,
    or death of, any person or persons . . . occurring wholly or in
    part in connection with or resulting from the work or by reason
    of any act, omission or negligence of [Femco][.]"             Thirdly, Femco
    agreed to indemnify Hugo Neu for claims arising out of "(c) any
    breach   or   default      hereunder     by   [Femco][.]"    The   subcontract
    specified     that   all    three   of   these   indemnity   triggers    apply,
    "whether or not any acts, errors, omission[s] or negligence of any
    48
    A-4439-11T2
    of the [i]ndemnities [i.e., Hugo Neu] contributed thereto in whole
    or in part[.]"
    The trial court correctly held this indemnity language in the
    Femco subcontract to be valid and enforceable.           We further concur
    with the court that this contract language was sufficiently plain
    and unequivocal to require Femco to indemnify Hugo Neu for damages
    caused by Hugo Neu's own negligence.          See 
    Ramos, supra
    , 103 N.J.
    at 191-92 (requiring such provisions to be expressed in unequivocal
    terms); see also Azurak v. Corporate Prop. Investors, 
    175 N.J. 110
    , 112-13 (2003) (same).
    We   reject   Femco's   argument      that   the   "whether     or    not"
    phraseology   contained   in   the    contract's    indemnity       provision
    created a fatal ambiguity that limits its obligation to indemnify
    Hugo Neu for its own negligence.          Nor do we agree with Femco that
    the indemnity language here is internally inconsistent.              The only
    limitation that applies stems from the statute, N.J.S.A. 2A:40A-
    1, precluding an enforceable duty to indemnify a party that is
    solely negligent, not applicable here.
    In addition, we are unpersuaded by Femco's claim that the
    "arising . . . out of" phrase in the contract's indemnity language
    precludes Femco's duty to indemnify Hugo Neu for injuries that
    were not shown to be proximately caused by Femco's conduct.
    Applying a common and ordinary sense to that phrase, there only
    49
    A-4439-11T2
    needs to be proof of "a substantial nexus" between the injury and
    the activities encompassed in the contract. Vitty v. D.C.P. Corp.,
    
    268 N.J. Super. 447
    , 452-53 (App. Div. 1993); see also 
    Leitao, supra
    , 301 N.J. Super. at 193.
    For example, even if Hugo Neu were found partially negligent
    for an accident resulting to some extent from its failure to
    maintain the safety of a job site where Femco was working, the
    indemnification agreement would apply.                 That is because of the
    "substantial     nexus"       between    the    accident   and    the    job    site
    activities encompassed by the contract, unless, as we have said,
    Hugo   Neu    were    found    to   be   100%   responsible      for    the   unsafe
    conditions.
    2.
    Hugo   Neu's    subcontract       with   S&B   likewise   contains      broad
    indemnity language.       Stripped to its essence, the indemnification
    clause provides that "[t]o the fullest extent permitted by law,"
    S&B shall indemnify Hugo Neu "against claims, damages, losses and
    expenses, including but not limited to attorneys' fees, arising
    out of or resulting from performance of [S&B's work under the
    contract], including, without limitation, any such claim, damage,
    loss or expense attributable to bodily injury, . . . caused by the
    acts or omissions of [S&B], . . . or anyone for whose acts they
    50
    A-4439-11T2
    may be liable, regardless of whether or not such claim, damage,
    loss or expense is caused in part by [Hugo Neu]."
    This language clearly expresses that S&B must indemnify Hugo
    Neu   against     all    claims    "arising         out   of   or   resulting       from
    performance of" S&B's work.           The obligation applies, "regardless
    of whether or not such claim, damage, loss or expense is caused
    in part by [Hugo Neu]."            The contract expressly identifies one
    subset of such claims for which S&B must indemnify Hugo Neu
    "without limitation," that is, claims for bodily injury caused by
    S&B's negligence, or the negligence of any party for which S&B is
    responsible.
    Hence,    under     the     clear   and       unambiguous      terms     of    the
    indemnification clause, S&B must indemnify Hugo Neu for decedent's
    damages caused by Hugo Neu or S&B.              As we have already noted with
    respect to Femco's similar provision, the phrase "arising out of"
    does not require a finding of proximate cause between a plaintiff's
    injury and S&B's work.            Rather, it is sufficient that there is
    proof of a substantial nexus between the injury and S&B's work.
    
    Vitty, supra
    ,    268    N.J.     Super.      at    452-53.        So   interpreted,
    decedent's injury here clearly "arose out of" his employer S&B's
    work under the contract, because it is undisputed that decedent
    was injured while performing such work.
    51
    A-4439-11T2
    The trial court therefore correctly granted partial summary
    judgment to Hugo Neu in ruling that S&B was obligated to indemnify
    Hugo Neu pursuant to their subcontract, so long as Hugo Neu was
    not found to be solely liable for the accident.            We therefore
    reject S&B's cross-appeal of that determination.
    3.
    The indemnity issues are complicated here, however, by the
    fact that Hugo Neu bargained for duplicative indemnity protection
    from both Femco and S&B. Given that the accident had a substantial
    nexus to the work of Hugo Neu, Femco, and S&B, and did not arise
    wholly out of Hugo Neu's negligence, a question arises as to
    whether Femco or S&B has a primary duty to indemnify Hugo Neu, or
    whether   those   duties   somehow   should   be   equitably   allocated,
    assuming that Hugo Neu seeks to enforce its rights under both
    indemnity agreements.9     See, e.g., Chamison v. Healthtrust, Inc.,
    
    735 A.2d 912
    (Del. Ch. 1999) (in which a corporation's director
    had a right to be indemnified by two separate indemnitors, and in
    which the court divided their indemnity obligations equally),
    aff’d, 
    748 A.2d 407
    (Del. 2000).
    9
    At oral argument on appeal, counsel for S&B asserted that Hugo
    Neu has "waived" its rights to seek indemnity from S&B. We have
    located no evidence of such a waiver in the parties' submissions.
    Indeed, Hugo Neu filed a brief opposing S&B's cross-appeal of the
    trial court's ruling obligating S&B to indemnify Hugo Neu.
    52
    A-4439-11T2
    Although the parties have not briefed these precise issues
    of overlap, it is conceivable that the relative shares of fault
    of Femco and S&B may bear upon their resolution.10               No such
    comparative findings were made by the jury here.            As we have
    already noted, the jury was not permitted to consider assigning a
    percentage   share   of   fault   to   S&B.   We   shall   consider     the
    consequences of that omission, infra, in Part III(C).
    C.
    Given the circumstances, the trial court justifiably allowed
    S&B's counsel to participate in this jury trial, despite the
    objections posed at the time by plaintiffs' counsel.         The issues
    of contractual indemnification relating to Femco, S&B, and Hugo
    Neu required several factual determinations, in which S&B surely
    had an interest.
    These issues included whether Hugo Neu was solely at fault
    for the accident, in which case it would be entitled to no
    indemnity from either Femco or S&B under N.J.S.A. 2A:40A-1.             The
    issues also included whether Femco and S&B were each at fault,
    and, if so, to what extent, because those findings could bear upon
    the relative potential indemnity obligations to Hugo Neu of both
    10
    We suspect that Femco and S&B have not squarely addressed this
    priority issue because they both incorrectly presume that they
    would need to be individually found at least partially at fault
    in order to have any duty to indemnify Hugo Neu.
    53
    A-4439-11T2
    S&B and Femco.    If, for instance, the jury found S&B to be
    faultless, or that S&B's share of fault were less than that of
    Femco, then Femco arguably might have had the paramount obligation
    to indemnify Hugo Neu.
    The trial court declined, however, to include S&B on the
    verdict form and thereby allow the jury to "weigh in" on S&B's
    role, if any, in causing decedent's accident.       Such potential
    fault was not a fanciful possibility, as the evidence could have
    been reasonably viewed (consistent with certain opinions presented
    by some of the liability experts) to support a finding that S&B
    was negligent in allowing decedent, as its employee, to work in
    an area with an unsecured ladder it may have owned.
    Citing our opinion in 
    Kane, supra
    , the trial judge declined
    to place S&B on the verdict form out of an apparent concern that
    doing so would be inconsistent with the workers' compensation
    laws, and could unfairly interfere with plaintiffs' prosecution
    of their claims against the other defendants.   In this regard, the
    judge issued the following explanatory instruction to the jury:
    The plaintiffs may at some point have
    considered whether Simpson & Brown was
    negligent. As to that issue, I have ruled,
    as a matter of law, that the plaintiffs cannot
    sue Simpson & Brown for negligence in this
    case because it is unquestioned that Simpson
    & Brown was Mr. D'Avila's employer and the law
    does not permit that lawsuit to take place.
    So you're not going to be asked to assess the
    54
    A-4439-11T2
    responsibility of Simpson & Brown in this
    case.
    Simpson & Brown did participate in this
    case, as you know, but they participated for
    another issue which I, the Court, have to
    address later. It relates to a contract claim
    between Simpson & Brown and one or another of
    the construction defendants, and that's not
    for you to consider. Please don't speculate
    as to what that issue is.
    Only counsel for S&B, Dr. Schrader, and Nurse Garcia opposed the
    omission of S&B from the verdict form.11
    Notably, Femco itself never asserted a position to the trial
    court about the propriety of S&B's participation at trial, nor
    concerning S&B's inclusion or omission from the verdict form.
    Femco presented no argument on these subjects at the October 11,
    2011 pretrial hearing, in the colloquy with the court when the
    issue arose again on October 19, 2011 before opening statements,
    or during the January 3, 2012 charge conference.   Femco, which is
    now being represented by different counsel on appeal, does not
    explain why it was silent on this controversial subject before the
    trial judge, although we presume it had some strategic reason for
    being non-committal.
    11
    Hugo Neu initially took the position before the trial began that
    S&B should be on the form.       However, after the proofs were
    presented, Hugo Neu withdrew its objection at the charge
    conference, because its counsel had "shifted [his] focus" during
    the trial to the other defendants, given the court's previous
    indication before opening statements that S&B would not be on the
    verdict sheet.
    55
    A-4439-11T2
    For the reasons we have already noted in Part 
    III(A), supra
    ,
    the trial judge's reluctance to include S&B on the verdict form
    stemmed from legitimate concerns and a reliance upon our prior
    opinion in Kane.   Moreover, as we have also shown, the state of
    law on this particular subject was muddled.         Nevertheless, we
    conclude that the court erred in omitting S&B from the verdict
    form, having allowed S&B otherwise to participate fully in the
    trial and be represented by two separate counsel (one as to the
    job site accident and another as to the medical negligence claims).
    It was simply improper to allow S&B to participate in one manner
    without the other, and counsel have cited no authority endorsing
    such an arrangement.
    That said, we now must consider what to do about the verdict
    form omission.   Femco is the only party that is pressing the point
    on appeal, hypothesizing that its percentage share of liability
    might have been less had S&B been on the verdict form.              S&B
    acknowledges the omission was error, but contends that it was
    harmless.   Dr. Schrader, who had opposed S&B's omission, has
    settled with plaintiffs, and Nurse Garcia, who also opposed the
    omission, was not found liable.       Plaintiffs, who had previously
    resisted S&B's participation, simply urge that we not upset the
    verdict or require them to participate in any second trial.       Hugo
    56
    A-4439-11T2
    Neu also opposes a retrial, despite having initially favored S&B's
    inclusion on the verdict form when the issue arose before trial.
    Notably, no party on appeal is arguing that Kane required
    S&B, as decedent's employer, to be excluded from this trial.                In
    fact, the sole appellant that criticizes what occurred in the
    trial court, Femco, advocates just the opposite: that we repudiate
    "[t]he Kane court's admonition that an employer/indemnitor should
    not be permitted to participate in its employe[e]'s personal injury
    trial[.]"   Citing Rule 4:30A (the single controversy rule), Femco
    further argues that Kane's approach "unnecessarily suppresses" the
    important "public policy in favor of disposing of all claims
    against all parties in one proceeding."        Instead, Femco advocates
    that we adopt a more efficient approach that allows the employer
    to   participate,   but   with   appropriate   "jury   instructions   that
    explain the parties' specific claims and how the jury may apportion
    fault."     Hence, Femco urges that the unitary trial approach,
    sanctioned in White and mentioned in Bradford, be applied to cases
    such as the present one.
    Given that Femco did not advocate —— either before or during
    the trial —— for S&B's inclusion on the verdict form, we do not
    perceive a manifest injustice to Femco that needs correction.               We
    do not countenance a retrial of the entire case, which consumed
    almost forty days before a jury.
    57
    A-4439-11T2
    The "plain error" standard of review may be inapplicable here
    because the error of S&B's omission was "brought to the attention"
    of the trial court, albeit by other parties, see Rule 2:10-2. Even
    so, we are not convinced that Femco was sufficiently prejudiced
    by that error to compel a retrial.
    With respect to Femco's now-resolved direct liability to
    plaintiffs, we discern no prejudice from S&B's omission from the
    verdict form.    Femco's counsel strenuously advanced an "empty
    chair" theme against S&B at trial. That strategy apparently failed
    to persuade the jurors that Femco was blameless in the events
    leading up to the accident.
    We are unpersuaded that the jury would have exonerated Femco,
    or would have been likely to find Hugo Neu more liable than the
    25% allotted by the jury, had S&B been listed on the verdict form.
    There is no equitable or legally compelling reason here to require
    the entire case to be retried before a different jury, despite the
    improvident omission of S&B from the verdict form now belatedly
    being   complained   of   by   Femco.    In   Addition,   Femco's   recent
    settlement with plaintiffs, in which plaintiffs' judgment against
    Hugo Neu has been assigned to Femco, only strengthens the reasons
    for not burdening plaintiffs with additional proceedings.
    A lesser remedy may, however, be appropriate, depending upon
    what Hugo Neu now intends to do with respect to its overlapping
    58
    A-4439-11T2
    rights of indemnification against Femco and S&B.                         If Hugo Neu
    still intends to pursue indemnification from both subcontractors,
    pursuant      to   the    terms     of   their        contracts,     a    fact-based
    apportionment      of    fault    between     Femco    and   S&B    might    well       be
    necessary to resolve their respective duties to indemnify.12
    The jury trial unfortunately provided no guidance to compare
    Femco's and S&B's roles, respectively, in connection with the job
    site accident.      That comparison is not amenable to being resolved
    by our appellate review of transcripts from the jury trial, or by
    remanding the matter to the trial judge for a review of his trial
    notes.   Instead, the comparative relative percentages of fault of
    Femco and S&B —— assuming, arguendo, that they are needed to sort
    out the overlapping indemnity obligations of Femco and S&B ——
    cannot   be    fairly     decided    without     testimony         and   credibility
    assessments.
    12
    We do not resolve here whether the exclusive remedy mandate of
    N.J.S.A. 34:15-8, or related case law disallowing common-law
    contribution claims against a negligent employer, see 
    Ramos, supra
    , 103 N.J. at 189, could affect the priority of duplicative
    duties to indemnify owed to Hugo Neu by both Femco and S&B. We
    also do not resolve whether those authorities could affect whether
    Femco could obtain reimbursement from S&B of any sums it might pay
    to indemnify Hugo Neu. These issues, conditional as they are in
    nature, have not been briefed. If necessary, the trial court may
    consider them on remand, in light of any arguments raised by
    counsel.
    59
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    Should    Hugo   Neu,   therefore,   maintain   its   right   to       be
    indemnified by both Femco and S&B, then another proceeding may be
    required on remand to sort out the respective degrees of fault of
    Femco and S&B, as between one another.       The percentage shares of
    Hugo Neu, Femco, and Dr. Schrader owed to plaintiffs shall remain
    undisturbed.    The sole focus of such remand proceedings on the
    issues of contractual indemnity, if they are needed, shall be
    confined to a comparison of the actions and inactions of Femco
    with the actions and inactions of S&B.
    Because Femco, S&B, and Hugo Neu each requested a jury trial
    in their pleadings, the remand proceedings shall be tried, if
    necessary, before a new jury, unless, of course, the parties
    consent to a bench trial.      To reduce the costs involved and the
    burdens imposed on the other parties who are no longer involved
    in the case, counsel are encouraged to stipulate as much as
    possible to undisputed facts, and to consider agreeing to have
    much of the transcribed testimony from the first trial read into
    the record.
    We emphasize that the scope of this second proceeding, if one
    is required, should be narrow.     The damages awarded to plaintiffs
    shall remain unaltered, for the reasons noted, infra, in Part
    IV(A).
    60
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    IV.
    [At the direction of the court, the published
    version of this opinion omits Part IV, which
    addresses additional claims of error relating
    to the jury trial raised by S&B and Femco.]
    V.
    [At the direction of the court, the published
    version of this opinion omits Part V, which
    addresses numerous issues raised on appeal by
    two of the insurance carriers, specifically
    C&F and American Home.]
    VI.
    We have considered all of the other points raised on appeal
    by the various parties and conclude that they lack sufficient
    merit to be discussed in this opinion.   R. 2:11-3(e)(1)(E).
    Affirmed in part, vacated in part, and remanded in part.           We
    do not retain jurisdiction.
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