CARLOS SILVA et al. v. RIGHT WAY PAVING, BILL PETERSON and THOMAS Mc GILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3648-06T33648-06T3

CARLOS SILVA and SILVIA

SALES, his wife,

Plaintiffs-Appellants,

v.

RIGHT WAY PAVING, BILL

PETERSON and THOMAS Mc GILL,

Defendants-Respondents.

__________________________________

ARI COMPANIES,

Plaintiff-Respondent,

v.

CARLOS SILVA and SILVIA SALES,

his wife,

Defendants-Appellants,

and

RIGHT WAY PAVING, BILL PETERSON

and THOMAS MC GILL,

Defendants-Respondents.

__________________________________

PROFORMANCE INSURANCE COMPANY,

Plaintiff-Respondent,

v.

CARLOS SILVA and SILVIA SALES,

his wife,

Defendants-Appellants,

and

RIGHT WAY PAVING, BILL PETERSON

and THOMAS MC GILL,

Defendants-Respondents.

__________________________________

 

Argued January 7, 2008 - Decided

Before Judges Stern, Collester and C.L. Miniman.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-7989-04, L-5867-05 and L-1750-06.

Christopher L. Musmanno argued the cause for

appellants Carlos Silva and Silvia Sales

(Einhorn Harris Ascher Barbarito & Frost,

attorneys; Mr. Musmanno, on the brief).

Joshua H. Beinhaker argued the cause for

respondent Proformance Insurance Company

(DiFrancesco Bateman Coley Yospin Kunzman

Davis & Lehrer, attorneys; Santina M. Bombaci,

on the brief).

Gregory D. Winter argued the cause for respondent

ARI Companies (Winter & Winkler, attorneys;

Mr. Winter, on the brief).

PER CURIAM

Carlos Silva (plaintiff in the personal injury action), appeals from an order, entered on March 2, 2007, denying his motion for reconsideration of an order entered on January 5, 2007, granting summary judgment to ARI Insurance Company and Proformance Insurance Company in this consolidated matter, including the declaratory judgment action. The January order declares that Proformance owes no "defense or indemnification obligation" to Thomas McGill. It does not expressly, or otherwise, grant summary judgment to ARI Insurance Company, or declare that ARI has no obligation to defend or indemnify its insured, Bill Peterson, but the motion judge's letter opinion and the motion for reconsideration made that clear.

The Law Division found that Silva was an employee of Right Way Paving (and that Right Way Paving was a partnership composed of Peterson and McGill), and dismissed the complaint against them because of the workers' compensation bar to common law actions. It rejected the contention that Silva was either an "independent contractor" or "casual employee," and concluded, by reference to Sloan v. Luyando, 305 N.J. Super. 140 (App. Div. 1997), that under "both the 'control test' and the 'relative nature of the work test,' . . . Mr. Silva was an employee of Right Way Paving." In their briefs before us, the carriers seek to uphold the judgment, and assert there is no coverage under their automobile policies with respect to injuries to their insureds' "employees." On the motion for reconsideration the judge developed her holding that Silva was employed by both McGill and Peterson as partners, and rejected the contention there was an issue of material fact as to that question:

The argument that is being made that these two individuals were not partners, did not act "in concert" with one another with regard to this particular incident, everything that has been presented to this Court says differently.

You, at any point in time, read through the various transcripts of Mr. McGill and Mr. Peterson, and they both agree that they were partners. That they acted together, if not on this particular job site, on other job sites. . . .

. . . That Right Way Paving was something that they did together and that they split in the profits. What more you need to show that they, in their minds, and in their conduct, were operating as a partnership, I don't know.

I looked at the statute N.J.S.A. 42:1[A]-10, which defines what a partnership can be, and it says it's an association of two or more persons to carry on as co-owners of business for profit that is formed -- they form a partnership whether or not the persons intended to form a partnership. That's what the statute in fact says. And then it says, in determining whether or not a partnership is formed, the Court is directed to look to all the surrounding circumstances and the intent of the parties and their conduct. Everything in the depositions that these two gentlemen said complies with how the Court is directed to look at them.

Their intent, they say specifically, we acted together as partners. Their conduct, one had one part of the equipment needed to conduct the business, and the other had another part of the equipment to conduct the business, and without both pieces there was no business to be conducted. They said it, one had the paver, one had the truck, one had the trailer. They said it, when anyone had a job, we would contact the other one if he didn't have a job, and we would bring everybody together and we would work that job. That's the way we did it.

. . . .

Everything that has been presented to m[e] on behalf of Mr. Peterson, on behalf of Mr. McGill, on behalf of Mr. Silva, indicates that Mr. Silva worked for Peterson, McGill and on that day and time, Peterson, McGill were operating under what they call Right Way Paving, and it's as simple as that.

Silva contends that "the trial court erred in granting summary judgment in favor of ARI and Proformance and holding applicable their respective employee policy exclusions," and that "the trial court erred in deciding as a matter of law a partnership existed between Thomas McGill and Bill Peterson." Following oral argument on the appeal, Silva and McGill reached a settlement, leaving for resolution the case as to Peterson only.

The record on the summary judgment motion revealed that Silva moved to the United States around 1992, and was living in Perth Amboy. Since coming to the United States, he has worked a variety of manual labor jobs. Sometime in 2002, Silva began working as a day laborer for McGill and Peterson helping pave driveways, and would sometimes drive a dump truck. Silva estimates that he worked on a couple of hundred jobsites for McGill and Peterson between 2002 and 2004. It could have been "over 600 times."

McGill and Peterson are cousins and are self-employed in the driveway paving business. McGill owns his own paving equipment, including the dump truck insured under Proformance's commercial automobile policy. McGill had operated for "about a year and a half" prior to the accident under the name of "Right Way Paving trading as Thomas McGill." The name "Right Way Paving" is registered as a trade name of McGill and his wife, but is not incorporated, and McGill had no partnership agreement with Peterson. McGill had no employees on the books and maintained no Workers' Compensation Insurance. He employed the services of several day laborers on any given job, who were paid in cash.

Peterson has operated under the unregistered trade name "Bill the Paver" for around ten years prior to the accident, and also owns his own paving equipment, including the paver and trailer insured under an ARI commercial auto policy. Peterson similarly employed day laborers on his jobs. Depending on how busy or slow business was, McGill and Peterson would sometimes partner on jobs, in which case they would split the profits but would so operate under the name of Right Way Paving.

On July 24, 2004, McGill and Peterson assert they partnered on a driveway paving job in Warren. Silva worked on the job as a driver and day laborer. McGill stayed home and was not on site that day. According to Silva, while at the job site, Peterson instructed him to drive the McGill dump truck to another site and then left the site accompanied by the day laborer who normally operated the paver. The dump truck was connected, however, to the Peterson trailer, on which the paver was located. Silva believed that Peterson's order required him to "unhitch the trailer from the Peterbilt" truck and doing that required that he first unhitch and "move the paver." Silva knew how to "move the paver" from having observed other laborers do so but he did not know how to do paving. He had never before moved the paver onto or off of the trailer before.

Silva climbed onto the trailer and stood behind the paver, in order to ensure that it would not drive off the side of the trailer. He accidentally operated the wrong lever, however, causing the paver to back up over his leg and crush it against the back of the trailer. The other laborers responded to his cries for help and were able to free his leg. Silva was rushed to the hospital by ambulance and underwent an operation that same day. He underwent several other operations, which required extensive hospitalization.

As already noted, the dump truck was insured by the Proformance policy issued to "Magill Paving Co, Thomas Magill T/A." The named insured on the ARI policy that insured the paver and the trailer was "Bill & Anthony Peterson T/A Bill the Paver." Both policies contained a clause that excluded coverage of bodily injury to an employee of the insured "arising out of and in the course of" the insured's business or performance of the duties "related to the conduct of the 'insured's' business."

Silva contests the judge's conclusion on summary judgment that he was an "employee" rather than an independent contractor and contends that, even if he was an "employee," there was a material issue of fact as to the identity of his employer. Before us (prior to the partial settlement), Silva insists that he could only have been an employee of Rite Way Paving, or of either McGill or Peterson, but not both. Moreover, Silva argues that even if he was employed by both simultaneously, it was under the trade name Right Way Paving, and that since Right Way Paving is not a named insured under either policy, the exclusions in those policies do not apply.

We are in total agreement with the motion judge that Silva was not an independent contractor while working on the job. There is no basis for concluding that Silva conducted an independent business. He did not "control" the means by which he performed his work and he was "economically dependent" on his employer. See Sloan v. Luyando, supra, 305 N.J. Super. at 148.

The issue relating to the employer's identification poses a harder question. It is clear, however, that an employee can simultaneously have more than one employee for purposes of workers' compensation. Walrond v. County of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006); Murin v. Frapaul Const. Co., 240 N.J. Super. 600, 606-07 (App. Div. 1990); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Moreover, it is clear that McGill and Peterson acted together on certain jobs. They both testified that they sometimes worked together and would share equipment, labor and profits. In sum, they considered their relationship a partnership, and in the context of workers' compensation, a partnership is not an independent entity separate from each of the partners. Mazzuchelli v. Silberberg, 29 N.J. 15 (1959) (no ability of employee to sue individual partner incident to his negligence in auto accident).

According to McGill's deposition:

Q. Was Carlos Silva such a day laborer?

A. He worked for Bill Peterson. He was Bill Peterson's driver.

Q. Was Carlos Silva a worker for you?

A. When we worked together -- well, we -- when we worked together, yes. He would work for both of us, but when we were separated, he'd work for Bill. Or if I needed him a day or two, Bill didn't have no work, he'd work for me.

Q. So he worked for both of you, depending upon the job?

A. Yes, depending on the job.

Q. And whoever he worked for, that would be the person who paid him in cash?

A. Paid him, yeah.

Q. So in and about July of 2004, either you or Mr. Peterson would pay Mr. Silva cash depending on whether he worked for you or worked for Mr. Peterson on that particular job?

A. Yes.

Q. So when you said a moment ago that he was Bill Peterson's driver, that may be true for one job --

A. Yes. But he worked for --

Q. -- but for another job, he may be --

A. -- yes. Drive for me.

Q. -- your driver --

A. Right.

Q. -- or do something else for you?

A. Yes. Yes, sir.

Q. When your day laborers, including Mr. Silva, were working for you, were you always present when they were working for you?

A. No.

Peterson testified in depositions that on the day in question McGill was sick, so Peterson needed someone to assist him on the job. He would not have used Silva "had Mr. McGill not been sick." He asked Silva to report for work. According to Silva's deposition, Peterson told him "to take the paver off the trailer," although he had never been asked to do so before the accident. In any event, according to Silva, Peterson told Silva to drive the Peterbilt truck "to the other job site." The injury occurred when he was unhitching the trailer from the truck.

There may be some immaterial factual disputes in the record, but according to Silva the accident occurred as a result of a direction given to Silva by Peterson who told him to drive the dump truck to another site, and Silva was injured when endeavoring to follow that direction. In those circumstances, we find no basis in the record for disturbing the judgment with respect to ARI.

We affirm the grant of summary judgment to ARI.

 

We refer to plaintiffs as "Silva" even though his wife sues per quod.

The March 2, 2007 order refers to the summary judgment order as having been entered on January 7, 2007.

There is no dispute as to the injuries, and their scope is irrelevant to the appeal.

Peterson testified that Silva was not supervised on the job, and he did not instruct Silva "to take [the] dump truck from [the] site to another place" or to move the truck.

This is our interpretation of the deposition. It is not that clear if Silva said Peterson told him to remove the paver.

Given the settlement with McGill, we need not decide whether he and Peterson actually formed a partnership with respect to the work on the day in question. Nor do we address any issue related to the impact of the carriers' defenses which result in a concession that their insured violated the requirement to provide workers' compensation coverage, or any other remedy Silva may have for his injuries.

(continued)

(continued)

2

A-3648-06T3

March 5, 2008