DIANE JANELA, individually et al. v. ROMAN ASPHALT CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3852-04T33852-04T3

DIANE JANELA, individually and

as executor of the Estate of

Daniel Janela, deceased,

Plaintiff-Appellant,

v.

ROMAN ASPHALT CORP. and

MICHAEL LAMORGESE,

Defendants-Respondents.

___________________________________

 

Argued: May 31, 2006 - Decided October 11, 2006

Before Judges Kestin, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, L-8644-02.

Michael D'Alessio, Jr. argued the cause for appellant.

Elliott Abrutyn argued the cause for respondents (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys; Mr. Abrutyn, of counsel and, with Thomas G. Rantas, on the brief).

PER CURIAM

Plaintiff appeals from an order granting defendants' motion for summary judgment and dismissing plaintiff's claims arising from the October 11, 2000 work-connected death of Daniel Janela. The dismissal was based on the bar contained in N.J.S.A. 34:15-8, the exclusive remedy provision of the Workers' Compensation Act. The focal issue in the matter is whether RaeBeck Construction Co. (RaeBeck) was Janela's sole employer at the time of the accident that resulted in his death, or whether defendant Roman Asphalt Corp. (Roman) was his general employer and RaeBeck a special or "borrowing" employer. See, e.g., Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402-03 (App. Div. 1988).

After dismissing all claims alleging intentional conduct and denying prior motions for summary judgment so that discovery could be completed, Judge Rothschild reconsidered the matter and, for reasons expressed in a comprehensive and well-reasoned letter opinion, granted the motion to dismiss the complaint. The opinion began with the essentially uncontested factual background of the matter.

RaeBeck won a paving contract at Newark Liberty Airport that had been set aside for minority/women's business enterprises or small business enterprises. The bidding specifications incorporated into the contract with the Port Authority of New York and New Jersey (Port Authority) contained a provision requiring the successful bidder to exercise direct control over the project:

Given this bidding preference, the successful bidder shall, at a minimum, maintain a regular on site presence at the Construction Site and exercise day-to-day financial and operational management, control and oversight of the Work.

Another clause stated that a bid constituted a certification, inter alia,

that the bidder and each parent and/or affiliate of the bidder has not . . . (k) shared space, staff or equipment with any business entity.

"Staff sharing" was defined:

Staff shall be considered to be shared when any individual provides the services of an employee, whether paid or unpaid, to the bidder and also, on either a regular or irregular basis, provides the services of an employee [of any type or level] paid or unpaid, to one or more other business(es) . . . during any part of the same hours the individual is providing services to the bidder or if such services are provided on an alternating or interchangeable basis between the bidder and the other business(es)[.]

RaeBeck's owner, Nigel Singh, testified at depositions that RaeBeck had used two other companies to do all the work on the airport job. Roman did all the paving. Although Singh testified that he considered Roman a "subcontractor", he also testified that RaeBeck had no presence at the job through supervisory employees or otherwise. He acknowledged that Roman "furnished or supplied their employees to do this job . . . . and they also furnished their own equipment[.]" His company, RaeBeck, however, wrote the checks for the employees' wages based on records provided by Roman and sent them to Roman for distribution to the employees. Singh testified that RaeBeck had no role in selecting, supervising or controlling the employees. These assertions were confirmed by Roman's principals in their depositions.

Mrs. Diane Janela, the plaintiff, testified in depositions that her husband had worked in road building through his union for many companies since the mid-1980s, but primarily for Roman. Judge Rothschild noted the existence of employment records showing that, during the weeks preceding the accident, "Janela was working on several Roman [] construction jobs at sites other than Newark Airport."

On the date of the fatal accident, Janela reported to work at Roman's premises, having driven a Roman truck there from home, as was his custom. The supervisor ordered that a compressor be loaded onto a flatbed vehicle for delivery to the airport job site. As that task progressed, the compressor broke free of a restraining chain and hit Janela, who was observing the loading process, fracturing his skull and killing him.

Initially, Mrs. Janela filed a worker's compensation claim against RaeBeck. One of Roman's principals, Michael LaMorgese, who managed Roman and had been acting as a supervisor on the day in question, gave a statement to an insurance investigator asserting that he was employed by RaeBeck, as well; and he described the agreement between RaeBeck and Roman as "call[ing] for Roman [] employees to become employees of RaeBeck [] for purposes of the project." Judge Rothschild concluded that "LaMorgese was trying to emphasize RaeBeck's primary role on the job, presumably to insure that RaeBeck was considered the employer for workers' compensation purposes" in the context of plaintiff's anticipated workers' compensation claim against RaeBeck. Judge Rothschild also stated that another Roman principal, Michael LaMorgese, Jr., in a deposition in this litigation, denied that Janela was working for Roman at the time of the accident. Judge Rothschild noted in his opinion that the workers' compensation claim was settled, with RaeBeck's carrier agreeing to pay Mrs. Janela $40,000 to $45,000 per year subject to some decrease as each of three children reached adulthood.

Judge Rothschild explored the law governing the workers' compensation bar and the concept of "lent employees and dual employment". Applying the well-established five-part test summarized in Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 430 (App. Div. 1967), to the facts of the case as he viewed them, he determined that "Janela was the general employee of Roman [] and the special employee of RaeBeck, and can sue neither" in a civil action. Our examination of the record and the trial court's written opinion leads us to conclude, as Judge Rothschild did, that, viewing the circumstances indulgently in favor of plaintiff, the non-movant, see Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), no reasonable trier of fact could rationally conclude, based upon the showings made, that Roman, a defendant in this action, was not an employer of Janela within the meaning of the Workers' Compensation Act. See ibid. Thus, we view as essentially without merit plaintiff's argument on appeal that the result was based upon findings of fact that were inappropriate at the summary judgment stage. See id. at 540-42; Triffin v. American International Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004)(observing that a court on summary judgment is not required "to turn a blind eye to the weight of the evidence; the 'opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" (citation omitted)).

Such manipulation as may have occurred between RaeBeck and Roman to circumvent the Port Authority's bidding specifications and contract requirements cannot be seen to negate the legal rules governing workers' compensation and eligibility to pursue a civil action claim. The special set-asides the Port Authority sought to effect, and the assurances it required that the successful bidder would conform to its standards in every particular, can have no bearing on the interpretation or applicability of the law governing rights and remedies between employers and employees. If RaeBeck deserves to be sanctioned for its ostensible avoidance of its contract obligations, that cannot be accomplished by holding Roman to be amenable to a civil action claim in contravention of established legal standards defining employment relationships. Nor can any lately-perceived flaw in plaintiff's workers' compensation claim against RaeBeck alone be remedied by entertaining a civil action claim against Roman.

We are in substantial agreement with Judge Rothschild's articulated view of the standards governing employment relationships. We also agree substantially with his reasons for rejecting plaintiff's argument raised on appeal as well as before the trial court that principles of judicial estoppel preclude Roman from prevailing in this action.

Affirmed.

 

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A-3852-04T3

 

October 11, 2006