JOHN MILLER et al. v. FIRMENICH INCORPORATED, UNICON, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5337-04T55337-04T5

JOHN MILLER and

BONNIE MILLER,

Plaintiff-Appellants,

v.

FIRMENICH INCORPORATED,

UNICON, INC., and ART

COON CONTRACTING,

Defendants-Respondents.

_________________________________________________________

 

Submitted December 14, 2005 - Decided July 26, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-1893-04.

Drazin & Warshaw, attorneys for appellant

(Steven L. Kessel, on the brief).

Weston, Stierli, McFadden, attorneys for

respondent Firmenich Incorporated (John

Goworek, on the brief).

Herforth MacDonald & Gallicchio, attorneys

for respondent Unicon, Inc. (J. R. Peter

Wilson, on the brief).

Malcolm Franklin & Associates, attorneys for

respondent Art Coon Contracting (Brian M.

Brodowski, of counsel and on the brief).

PER CURIAM

In this personal injury action, plaintiff John Miller seeks damages as a result of an accident on August 28, 2002. At the time of the accident, plaintiff was working as a piping designer for Firmenich, Inc. (Firmenich) located in Port Newark. Plaintiff claims that he slipped and fell on a piece of stainless steel pipe that was "either a half inch or 3/4 inch in diameter and about a foot long," while he was on a platform "taking measurements with Lo Ling (Engineer) to locate piping." In his complaint, plaintiff alleges that defendants negligently "caused and/or permitted dangerous practices and an unsafe work environment to exist."

Plaintiff appeals from summary judgment orders dismissing his complaint as to each of the defendants. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm the summary judgment order in favor of Firmenich, but we reverse the orders of summary judgment entered in favor of Art Coon Contracting (Art Coon) and Unicon, Inc. (Unicon).

On November 5, 2001, Firmenich signed an agreement for labor services with L. J. Gonzer Associates (Gonzer), a labor services or staffing company. Gonzer hires individuals with technical training and then assigns them to work with their clients on a temporary basis. Miller signed an employment agreement with Gonzer on November 6, 2001, and he began working for Firmenich (Gonzer's client) later that month.

When a temporary employment agency such as Gonzer, lends one of its trained employees to a client of the agency, the lent employee may be considered to be temporarily employed by the borrowing employer (Firmenich) for purposes of workers' compensation coverage. Walrond v. County of Somerset, 382 N.J. Super. 227, 234-35 (App. Div. 2006). "'Whether [a] common law action is precluded [against the borrowing employer] is . . . dependent upon a determination that the borrower . . . is, in fact, a special employer.'" Id. at 235 (alteration in original) (quoting Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430 (App. Div. 1967)). The following nonexclusive, fact-sensitive, five-pronged test is applied to determine whether a special employer-special employee relationship exists:

(1) the employee has made a contract of hire, express or implied, with the special employer;

(2) the work being done by the employee is essentially that of the special employer;

(3) the special employer has the right to control the details of the work;

(4) the special employer pays the employee's wages; and

(5) the special employer has the power to hire, discharge or recall the employee.

[Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 571-72 (App. Div.), aff'd o.b., 147 N.J. 42 (1996).]

After reviewing the facts, in light of the legal criteria set forth in Kelly, the trial court determined that Miller was a "special employee" of Firmenich and dismissed plaintiff's complaint on the ground that the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, constituted Miller's sole remedy. The court's findings included the following:

[H]e was hired . . . to work in the Engineering Department. He began his employment. Mr. Miller went through 2 days of training, [during] which he reviewed the Firmenich safety manual policy procedures. All of the employees, hired from various agencies, were . . . required to go through that, to work directly under Firmenich's employees['] supervision and control. Mr. Miller was working under John Chang, a Project Engineer at Firmenich at the time of the accident. And he was also working under the direction of another Firmenich employee, a Lo Ling at the time of the accident. While working for Firmenich, Mr. Miller was performing work exclusively for Firmenich. He was performing work that was for Firmenich. I don't think there's any distinction to be found in the fact that the factory was going through renovations at the time. . . . Firmenich had the right to . . . control the details and circumstances of Mr. Miller's work. . . . Firmenich also had full control over the right to hire, discharge, or . . . recall Mr. Miller. And, if they were unsatisfied with his work, they could fire him.

We affirm this determination substantially for the reasons stated by the trial court. In exchange for receiving workers' compensation coverage, employees surrender their right to common law tort remedies against their employer and co-employees, except for intentional wrongs. N.J.S.A. 34:15-8; Ramos v. Browning Ferris Indus., 103 N.J. 177, 183 (1986). "Fundamental to the [Workers' Compensation] Act is the premise that by accepting the benefits provided by its schedule of payments, the employee agrees to forsake a tort action against the employer." Ibid. "[U]nder workers' compensation, an employee can have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from maintaining a tort action against the other for the same injury." Walrond, supra, 382 N.J. Super. at 234 (internal quotation marks omitted); see also Kelly, supra, 287 N.J. Super. at 576-77 (recognizing a special employment relationship under substantially similar circumstances).

Plaintiff also contends that the trial court erred when it characterized his opposition to the summary judgment motions by Art Coon and Unicon as a "sham affidavit." The trial court found there was no genuine issue of material fact because plaintiff submitted a sham affidavit in an attempt "to create an issue of material fact by raising issues, which are contradictory to his prior sworn testimony."

Miller's deposition on March 10, 2005, more than two and one-half years after he was injured, includes the following:

Q. Do you have any idea where this loose pipe might be coming from?

A. I was just guessing whoever the contractors were there at the time, because there were a lot of jobs going on at the factory at that particular time.

Q. What contractors are you aware of working at the factory during this time period?

A. At the time there was Unicon. There was also the plumber which was -

Q. Art Coon?

A. -- Art Coon.

. . . .

Q. Do you have any idea what specific projects [Unicon employees] might have been working on in August of 2002?

A. No they were all over the plant.

Q. How about Art Coon?

A. Same thing. He was all over the plant.

Q. Do you have any idea where he might have been working in August 2002?

A. No. I don't.

Q. Do you recall that you saw any Unicon or Art Coon employees in the same area where you had your accident on August 28th, 2002 before the accident occurred?

A. Yes. There was contractors working there.

[Emphasis added.]

In his affidavit of May 13, 2005, Miller states:

4. At the time I was working on Pad 1, and for several days before my accident, employees of Unicon and Art Coon contracting were also working on Pad 1. Unicon employees had distinctive hardhats, and I knew the Art Coon employees from seeing them around the plant. Besides employees from Art Coon and Unicon, the only people working on Pad 1 at that time were people from my design team, who were not allowed to take down or install pipe.

5. The work being done by both Unicon and Art Coon involved the type of pipe on which I slipped.

. . . .

7. The bill submitted to Firmenich by Art Coon shows that three pipe fitters were working at the plant on August 27, 2002 and on the day of the accident, August 28, 2002. Art Coon has not supplied the daily invoice for either of those two days, but the invoice for August 23, 2002 indicates that they were shooting sewer lines and boiler lines. Certain sewer[] lines near Pad 1 that drain chemicals are stainless steel, and the process of shooting those lines requires disassembly.

8. . . . Unicon people were working on Pad 1 with me at the time of my accident . . . . Unicon's work would have also required disassembly of stainless steel pipes in the area of Pad 1.

Plaintiff claims he was unable to accurately respond to questions regarding defendants' activities during his deposition because he thought the questions pertained to the entire month of August 2002. Plaintiff notes that when he was asked a more specific question regarding the location of defendants' employees prior to the accident on August 28, 2002, his answer was consistent with the information he provided in his affidavit.

The sham affidavit doctrine "refers to the trial court practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony." Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). "The doctrine calls for rejection of the affidavit where the contradiction is unexplained and unqualified by the affiant." Ibid. In such instances, the allegedly disputed factual issue can be considered a sham, rather than an impediment to a summary judgment in favor of the moving party. Ibid. "When not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony." Id. at 201. Affidavits should not be rejected where "the contradiction is reasonably explained, . . . or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Id. at 201-02.

As noted in plaintiff's affidavit, an invoice dated August 23, 2002, confirmed that Art Coon's employees were "shooting sewer lines" on that day, only five days prior to plaintiff's accident. Thus, there was independent proof from at least one of the defendants that plaintiff's affidavit was accurate.

Our review of plaintiff's deposition testimony convinces us that the questions asked were somewhat ambiguous as to the time period involved, and plaintiff has provided a reasonable explanation for the alleged inconsistencies between his deposition testimony and his affidavit. Shelcusky, supra, 171 N.J. at 201-02. A reasonable jury could conclude, based on the circumstantial evidence in the record, that Art Coon or Unicon employees were working in the area of the accident on or before August 28, 2002, and left behind the piece of pipe that plaintiff slipped on. We therefore reverse the summary judgments entered in favor of Art Coon and Unicon.

 
Affirmed in part, reversed in part, and remanded for further proceedings.

Because John Miller's wife, Bonnie Miller, asserts a derivative claim, we refer to John Miller as plaintiff.

(continued)

(continued)

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A-5337-04T5

July 26, 2006