KELVIN HOLMES VS. JOSE ZAYAS(L-0597-13, HUDSON COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
         This opinion shall not "constitute precedent or be binding upon any court."
          Although it is posted on the internet, this opinion is binding only on the
            parties in the case and its use in other cases is limited. R. 1:36-3.
    
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-0591-15T2
    KELVIN HOLMES,
    
            Plaintiff-Appellant,
    
    v.
    
    JOSE ZAYAS, and JERSEY CITY
    INCINERATOR AUTHORITY,
    
            Defendants,
    
    and
    
    WASTE MANAGEMENT OF NEW JERSEY,
    INC. d/b/s or a/k/a NE NJ HAULING,
    NORRISTOWN ON SITE d/b/a CENTREX
    STAFFING, INC.,
    
            Defendants-Respondents.
    
    _______________________________________
    
                  Argued March 16, 2017 – Decided October 13, 2017
    
                  Before Judges Espinosa and Suter.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hudson County, Docket No. L-
                  0597-13.
    
                  Daniel W. Sexton argued the cause for
                  appellant.
    
                  Paul Lanza argued the cause for respondents
                  (Callahan & Fusco, LLC, attorneys; Mitchell
               R. Ayes and Karen L. Williams, on the
               brief).
    
    PER CURIAM
    
         Plaintiff Kelvin Holmes was an employee of Norristown On Site
    
    d/b/a Centrix Staffing, Inc. (Centrix), a company that provided
    
    workers to defendant Waste Management of New Jersey (WM) pursuant
    
    to a contract. After he was struck by a car and injured, plaintiff
    
    collected workers compensation benefits from Centrix, settled with
    
    third    parties   and   filed   the        instant   action   against   Waste
    
    Management.    He appeals from an order granting summary judgment
    
    to WM, contending that the dismissal of his negligence claim was
    
    error.    We affirm, substantially for the reasons set forth by
    
    Judge Joseph A. Turula in his oral decision.
    
                                           I.
    
         In our review of the order granting summary judgment, we view
    
    the evidence in the light most favorable to plaintiff to determine
    
    whether Waste Management was entitled to judgment as a matter of
    
    law, Rowe v. Mazel Thirty, LLC, 
    209 N.J. 35
    , 41 (2012) (citing
    
    Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 529 (1995)),
    
    and review questions of law de novo.             Davis v. Devereux Found.,
    
    
    209 N.J. 269
    , 286 (2012).
    
         In the early morning hours of November 22, 2011, plaintiff
    
    had finished his shift as a sanitation worker when he was dropped
    
    
                                           2                             A-0591-15T2
    off by a Waste Management truck driver on JFK Boulevard in Jersey
    
    City, where he was to be met by a Waste Management supervisor who
    
    plaintiff expected to drive him to help on another route. 1               He
    
    attempted to cross Kennedy Boulevard to meet the supervisor but
    
    was struck by a vehicle driven by Jose Zayas.
    
           At that time, plaintiff had returned to working for WM two
    
    weeks earlier, having been placed there by a temporary agency,
    
    Centrix.     His paychecks came from Centrix.       He previously worked
    
    for WM from 2006 to 2007 and from 2002 through 2004.            Each time,
    
    he was placed with WM by a temporary agency, Centrix for 2006 to
    
    2007   and   Active   Staffing   for   2002   through   2004.    Plaintiff
    
    testified that, in 2006, Centrix took over the contract with WM
    
    from Active Staffing and that, when he returned to work, Centrix
    
    "was the agency you had to go through to get employment."
    
           Plaintiff's sole reason for applying to Centrix was so he
    
    could work for WM and he was "only employed with Centrix so that
    
    [he] could work for [WM]."       This had not been the case with Active
    
    Staffing, where he did other jobs as well as working for WM.
    
    
    
    
    1
       Plaintiff testified that when he was dropped off, it was either
    to take him home or to help out with another route. He believed
    that on this evening, he would have been taken to another route
    because it was too early to go home.
    
                                           3                          A-0591-15T2
          Plaintiff did not have to fill out additional paperwork for
    
    WM.   He watched a safety video that was specific to working for
    
    WM and never returned to the Centrix office.
    
          On November 7, 2011, plaintiff signed a form, labeled "Focus
    
    on Integrity, Code of Conduct, Safety Training, Responsibility
    
    Statement, Contractor Copy," which stated:
    
               I acknowledge that I am not a Waste Management
               employee but have been made aware of [WM's]
               Code of Conduct, understand it and accept my
               obligation and responsibility for maintaining
               [WM's]   reputation    for   integrity.      I
               acknowledge that I understand the safety
               training I have received and that it is my
               responsibility to wear all safety equipment
               as required and to comply with all applicable
               safety training, rules and regulations.
    
          He also signed an "Employee Safety Training Documentation"
    
    that acknowledged he had seen the "Waste Management Safety Video."
    
          Each day, he began work by walking to a destination where a
    
    supervisor drove him in a WM van to the garage where the garbage
    
    trucks were located.   Throughout his employment, he was told where
    
    the van would pick him up and what he would be doing.   During the
    
    two weeks he was employed prior to the accident, Centrix's "input"
    
    regarding his employment was to tell him he was assigned to WM.
    
    He was advised on a daily basis by a WM supervisor whether he was
    
    scheduled for work the following day.
    
    
    
    
                                     4                          A-0591-15T2
         The safety equipment plaintiff received, gloves and a lime
    
    green vest with reflectors, were provided by Centrix but, some of
    
    the vests were labeled with WM's name on the back.        The trucks he
    
    worked on were WM trucks.
    
         In 2011, Randy Newman was operations manager for Centrix.        He
    
    testified that Centrix trained employees who would work for WM
    
    using materials provided by WM.           Centrix handled disciplinary
    
    issues   and   was    responsible   for   terminating   employees   when
    
    necessary.
    
         Thomas Brindley, senior district manager at WM, testified
    
    that the route manager for WM selected who would work for WM on
    
    any given day.    Although the route manager did not have authority
    
    to terminate the employment of any Centrix employee, he could
    
    advise Centrix if he did not want a particular worker to return
    
    to work for WM.      He stated further that WM had safety requirements
    
    for certain items the workers should wear.
    
         The Master Agreement between WM and Centrix (referred to
    
    herein as Contractor) provided, in part:
    
              3.   Contractor Responsibilities: Contractor
              is in the business of supplying trained and
              qualified temporary labor ("Personnel") or
              ("Worker") to perform work as requested by
              Waste Management.      Contractor is solely
              responsible for performing all hiring, firing,
              discipline,      training       and      other
              responsibilities necessary to discharge its
              legal obligations as the employer of the
    
                                        5                          A-0591-15T2
    Personnel supplied to Waste Management.
    Contractor and Personnel shall be independent
    contractors in respect of Waste Management,
    and   shall   not  be   employees  of   Waste
    Management. Contractor is solely responsible
    for all payments whatsoever required to be
    made to or in respect of its Personnel,
    including, without limitation, all wages,
    salaries and benefits (including health
    insurance and/or medical payments), all
    federal, state and local payroll taxes, and
    all Workers' Compensation insurance coverage
    and payments.
    
    4.   Invoicing, Payment, & Rates: Contractor
    shall be reimbursed by Waste Management's
    third party administrator, . . . .
    
    5.   Training: Contractor is obligated to
    ensure that Personnel supplied to Waste
    Management are fully qualified and trained for
    the jobs they are being supplied to perform
    and that they have been given safety training
    that meets or exceeds the training Waste
    Management provides to its employees for the
    same or similar jobs.
    
    9.   Insurance: Contractor agrees to maintain
    the following minimum insurance with solvent
    and qualified insurers acceptable to Waste
    Management:
    
         a.   Workers Compensation and Employers
    Liability Insurance:
    
         . . . .
    
         d.   Waste Management, including parent,
    affiliated and related companies shall be
    named as an Additional Insured on all policies
    except Workers' Compensation.
    
    
    
    
                          6                          A-0591-15T2
                                     II.
    
         The Workers' Compensation Act (WCA) N.J.S.A. 34:15-1 to -128,
    
    provides an employee with an exclusive remedy against the employer
    
    for work-related injuries.    Gore v. Hepworth, 
    316 N.J. Super. 234
    ,
    
    240 (App. Div. 1998), certif. denied, 
    158 N.J. 70
     (1999); N.J.S.A.
    
    34:15-1,-7,    -8.   An   employee       receives   workers'   compensation
    
    benefits, which are awarded without regard to fault, and surrenders
    
    common law tort remedies against his or her employer and co-
    
    employees, except for intentional wrongs. 2             N.J.S.A. 34:15-8;
    
    Basil v. Wolf, 
    193 N.J. 38
    , 53-54 (2007) (citing Millison v. E.I.
    
    du Pont de Nemours & Co., 
    101 N.J. 161
    , 174 (1985)).
    
         An employee may have two employers under the special-employee
    
    doctrine.     Volb v. G.E. Capital Corp., 
    139 N.J. 110
    , 116 (1995)
    
    (citing Blessing v. T. Shriver and Co., 
    94 N.J. Super. 426
    , 429-
    
    30 (App. Div. 1967)).     When the doctrine applies, both employers
    
    are subject to liability under the Workers Compensation Act and
    
    the "recovery against one bars the employee from maintaining a
    
    tort action against the other for the same injury."             Antheunisse
    
    v. Tiffany & Co., Inc., 
    229 N.J. Super. 399
    , 402 (App. Div. 1988),
    
    certif. denied, 
    115 N.J. 59
     (1989).
    
    
    
    
    2
      Plaintiff does not appeal from the dismissal of his intentional
    wrong claim.
    
                                         7                             A-0591-15T2
         Therefore, whether the tort action against WM is barred is
    
    "dependent upon a determination that" WM is a special employer of
    
    plaintiff.     Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J.
    
    Super. 349, 360 (App. Div. 2014) (quoting Blessing, supra, 94 N.J.
    
    Super. at 430).    Because there is no question that an employment
    
    relationship    existed   between    plaintiff   and   WM,   the   question
    
    whether plaintiff was a special employee of WM is a question of
    
    law, which we review de novo.       Kelly v. Geriatric and Med. Servs.,
    
    Inc., 
    287 N.J. Super. 567
    , 578 (App. Div.), aff’d, o.b., 
    147 N.J. 42
     (1996).
    
         Our special-employee doctrine has its roots in the three-
    
    prong test recommended by Professor Larson for establishing a
    
    special-employment relationship:
    
              When a general employer lends an employee to
              a special employer, the special employer
              becomes liable for workmen's compensation
              only if:
    
              (a) The employee has made a contract of
              hire, express or implied, with the special
              employer;
    
              (b) The work being done is essentially that
              of the special employer; and
    
              (c) The special employer has the right to
              control the details of the work.
    
              When all three of the above conditions are
              satisfied in relation to both employers,
              both employers are liable for workmen's
              compensation.
    
                                         8                             A-0591-15T2
                [Blessing, supra, 94 N.J. Super. at 430
                (quoting 1A Larson, Workmen's Compensation §
                48.00, at 710 (1966)).]
    
          In granting summary judgment, Judge Turula found each of the
    
    Blessing criteria was satisfied.
    
          As to the first factor, whether an implied contract was
    
    created, the court found WM's repeated assertions that it was not
    
    plaintiff's employer to be "largely irrelevant to the legal issue."
    
    Citing Kelly, supra, 287 N.J. Super. at 575, the court said "the
    
    focus is not upon the relationship between the two corporations,
    
    but rather the plaintiff and each of his potential employers."
    
    Ibid.     Judge Turula observed, "Here, there was no dispute the
    
    plaintiff voluntarily accepted work from Waste Management which
    
    was     [sic]   therefore   gave    rise   to   an   implied   contract   of
    
    employment."     Judge Turula thus found the first factor weighed in
    
    favor of the special employer relationship.
    
          Plaintiff argues that there can be no implied contract between
    
    him and WM because the contract between WM and Centrix precludes
    
    its existence.       We acknowledge that the contract establishes
    
    responsibilities and rights as between WM and Centrix.             But, as
    
    Judge Turula observed, the issue here regarded the relationship
    
    between WM and plaintiff.          Pacenti v. Hoffman-LaRoche, Inc., 
    245 N.J. Super. 188
    , 193 (App. Div. 1991) ("The employment agreement
    
    necessary under the Larson tests involves the limited subject of
    
                                           9                           A-0591-15T2
    supervision for workers' compensation purposes, not the general
    
    responsibility   for   payment   of   wages,    withholding    taxes,
    
    unemployment compensation responsibility, job benefits and the
    
    like."); see also Kelly, supra, 287 N.J. Super. at 577.   Thus, the
    
    contractual language does not take precedence over the undisputed
    
    facts regarding plaintiff's employment.        Moreover, finding an
    
    implicit contract between plaintiff and WM does not void the
    
    contract between WM and Centrix or create immunity for WM because
    
    WM is liable as an employer under the WCA.
    
         Turning to the second factor, the work being performed, Judge
    
    Turula said this factor was "clearly satisfied" because "there is
    
    no dispute that the work done by the plaintiff was essentially
    
    that of Waste Management."   This factor has some overlap with the
    
    third factor, the right to control the details of the work.         The
    
    "sheer weight of authority" is that the predominant factor is
    
    "control."   Volb, supra, 139 N.J. at 116.        The Court noted,
    
    "federal authorities . . . are uniform that the ultimate test is:
    
    Whose is the work being done? . . . In determining whose work is
    
    being done, the question of the power to control the work is of
    
    great importance . . . ."    Ibid. (citations omitted).
    
         Judge Turula described the degree of control exercised by WM:
    
              Based on the record . . . the evidence [is]
              that Waste Management controlled the daily
              operation of plaintiff's activities.    For
    
                                     10                           A-0591-15T2
                instance, Waste Management's route manager
                will determine if the Centrix employee was
                selected to work on a given day. Moreover,
                according to the deposition testimony of
                Thomas Brindley, Waste Management's district
                management, if the route manager did not want
                Centrix's employees to return, he would
                request from Centrix not to have the employee
                return to Waste Management. . . .
    
           The judge also noted that plaintiff acknowledged he believed
    
    the Waste Management employee, Mark Mallett, was his supervisor.
    
           We agree with Judge Turula that each of these criteria was
    
    satisfied here.    Pursuant to Volb, supra, 139 N.J. at 116, citing
    
    Professor   Larson's   three-pronged     test,   that   is   sufficient    to
    
    establish the special employer relationship.            See also Vitale v.
    
    Schering-Plough Corp., 
    447 N.J. Super. 98
    , 117 (App. Div.), certif.
    
    granted, 
    228 N.J. 421
     (2016); Hanisko, supra, 437 N.J. Super. at
    
    360.
    
           Two other factors have been discussed as relevant to this
    
    inquiry and were considered by Judge Turula -- who paid plaintiff's
    
    wages and who had the power to hire, discharge or control the
    
    employee.
    
           We have previously noted the direct payment of the employee's
    
    wages "is not necessary for determination that a special employment
    
    relationship    exists . . .   because    "[t]he    money    used   to    pay
    
    [plaintiff's] wages came indirectly out of the fees paid by
    
    defendant for plaintiff's services."       Walrond v. Cty. of Somerset,
    
                                     11                                 A-0591-15T2
    
    382 N.J. Super. 227
    , 237 (App. Div. 2006) (quoting Kelly, supra,
    
    287 N.J. Super. at 577).        Indirect compensation for services, as
    
    through    a   temporary     staffing       agency,    is   sufficient    for     a
    
    determination     that   a   special    employment      relationship     exists.
    
    Kelly, supra, 287 N.J. Super. at 577. Judge Turula accordingly
    
    gave little weight to the fact Centrix paid plaintiff and we agree
    
    with that assessment.
    
         The "fifth" factor considered by Judge Turula was the power
    
    to hire, discharge or recall plaintiff.                See Kelly, supra, 287
    
    N.J. Super. at 577.          He found that power was inherent in WM's
    
    control over plaintiff's day to day activities.                The record also
    
    supports a conclusion that WM had such power because it had the
    
    authority to decide whether a worker could return to work for WM.
    
    Like the special employer in Kelly, WM lacked the power to decide
    
    whether plaintiff could work out of Centrix for anyone else, but
    
    "it had full control over whether [he] would continue to work at
    
    [WM]."    Ibid.   Therefore, we fully agree that WM had the requisite
    
    control    over   plaintiff's     employment      to    satisfy   the    special
    
    employment relationship.
    
         Plaintiff's remaining arguments lack sufficient merit to
    
    warrant discussion. R. 2:11-3(e)(1)(E).
    
         Affirmed.
    
    
    
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