CONTINENTAL CASUALTY COMPANY v. AMERITEMP, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3504-07T33504-07T3

CONTINENTAL CASUALTY COMPANY,

Plaintiff-Respondent,

v.

AMERITEMP, INC.,

Defendant-Appellant.

____________________________________________

 

Submitted January 27, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5278-05.

Shapiro, Shapiro & Jacob, P.C., attorneys for appellant (Richard A. Shapiro and Harvey J. Jacob, on the brief).

Reger Rizzo & Darnall, L.L.P., attorneys for respondent (John M. Cinti, of counsel and on the brief; Justin P. Harrison, on the brief).

PER CURIAM

Defendant Ameritemp, Inc. (Ameritemp) appeals from a judgment requiring it to pay certain premiums to its insurer, plaintiff Continental Casualty Company (Continental). The premiums are to pay for New Jersey workers' compensation coverage for employees that Ameritemp maintains are Pennsylvania workers not entitled to workers' compensation benefits in New Jersey. We affirm.

Ameritemp is a temporary employment agency conducting its business in New Jersey and Pennsylvania and employing workers from both states. Continental provided New Jersey workers' compensation coverage to Ameritemp for its New Jersey employees from 1998 to 2004. The parties dispute whether Continental was entitled to charge premiums for workers classified as "8102-Seed Merchants." The parties stipulated that the "8102-Seed Merchants" workers "lived in New Jersey, worked in Pennsylvania, were hired in Pennsylvania and occasionally traveled to New Jersey in the course of their employment."

Initially, these employees had been viewed as Pennsylvania employees, and Continental did not charge premiums for them. However, after an audit revealed that Continental had paid New Jersey workers' compensation claims for at least two of these workers, it sought premiums for this class of workers, treating them as New Jersey employees. When Ameritemp disagreed, this litigation ensued.

After conducting a bench trial, the trial judge issued a comprehensive written decision dated February 19, 2008. He found that Continental properly charged insurance premiums for the employees classified as "8102-Seed Merchants." In reaching this conclusion, the trial judge set forth the six factors to be considered when determining if workers' compensation law applies.

There are six grounds on which the applicability of the particular Compensation Act has been asserted; they are that the local state is the:

(1) Place where the injury occurred;

 
(2) Place of making the contract;

 
(3) Place where the employment relation

exists or is carried out;

 
(4) Place where the industry is localized;

 
(5) Place where the employee resides; or

 
(6) Place whose statute the parties

expressly adopted by contract.
 
[Wenzel v. Zantop Air Transport, Inc., 94 N.J. Super. 326, 333-34 (Law Div.) (quoting 2 Larson's Law of Workmen's Compensation 86.10), aff'd o.b., 97 N.J. Super. 264 (1967).]

The trial court went on to explain:

In reviewing the claims paid for injuries sustained by "8102-Seed Merchants" based on the stipulations and the testimony of Ms. Layton [the auditor], this Court would have a number of factors upon which to determine that benefits were available. Based on Ms. Layton's testimony, the injuries to "8102-Seed Merchants" where benefits were paid occurred in New Jersey, the claimant[]s (by way of stipulation) lived in New Jersey and the employment relationship (at least occasionally) exists or is carried out in New Jersey.

The trial court later reiterated this conclusion, stating:

Under a Wenzel analysis, it could be argued that any injury occurring in New Jersey to a "8102-Seed Merchant[]" for employees who []occasionally travel to New Jersey in the course of the employment and where those employees are New Jersey residents would subject the plaintiff, Continental, to be required to pay premiums. The plaintiff recognized this and charged premiums based on these potential claims.

The trial court also found that Continental would have provided credit for any premiums paid by Ameritemp on any Pennsylvania workers' compensation policy covering these employees. Since Ameritemp did not come forward with proof of insurance in Pennsylvania, the trial court concluded that no such coverage existed.

In light of these determinations, the trial court concluded that Continental was entitled to premiums for the "8102-Seed Merchants" employees for the policy period from June 30, 2001, to June 30, 2002, and entered in favor of Continental a judgment dated April 9, 2008, in the sum of $19,952.53, representing $16,978 in premiums, $2,125.78 in prejudgment interest and $848.75 in costs. Ameritemp's application for a refund for those premiums already paid for these workers was rejected.

On appeal, Ameritemp contends that the trial court erred, arguing that under Pennsylvania law a temporary employment agency such as Ameritemp is not liable in workers' compensation law to its temporary workers and has no obligation to purchase workers' compensation insurance for them. Since this argument was not raised before the trial court, it is subject to the plain error standard. R. 2:10-2. We find no plain error here.

The case relied on by Ameritemp, JFC Temps, Inc. v. Workmen's Comp. Appeal Bd., 680 A.2d 862 (Pa. 1996), does not stand for such a broad proposition. Under the facts of that case, the Supreme Court of Pennsylvania concluded that a temporary employee was entitled to workers' compensation benefits from the company in which he was placed and not from the temporary employment agency that placed him there. Id. at 863, 866. However, in reaching this conclusion, the Court expressly rejected the argument that a temporary employment agency should never be responsible for paying workers' compensation benefits. Id. at 864-65. Rather the Court found "that the better approach to determining which entity is the responsible employer is to examine the circumstances of each case in light of the factors" governing whether a worker is a "borrowed employee." Id. at 865. Thus, we cannot assume that under Pennsylvania law, these "8102-Seed Merchants" employees will always be covered under Pennsylvania law by another employer. Further, the JFC Temps, Inc. case did not address a question of workers' compensation coverage where the claim involved contacts between two states. In addition, the fact that a worker was eligible and indeed received a workers' compensation award in another state does not preclude the worker from pursing workers' compensation benefits in New Jersey. Williams v. A & L Packing and Storage, 314 N.J. Super. 460, 465 (App. Div. 1998).

Relying on Aetna Ins. Co. v. Trans American Trucking Serv., Inc., 261 N.J. Super. 316 (App. Div. 1993), Ameritemp also argues that Continental is not entitled to premiums for all of the "8102-Seed Merchants" employees, but only for premiums attributable to claims brought and paid. The trial court properly distinguished the Aetna case from the one at hand, since Aetna involved the question of whether an employer-employee relationship existed with workers designated as independent contractors. Here the presence of an employer-employee relationship is not at issue.

Accordingly, we affirm for substantially the reasons set forth in the trial judge's comprehensive written opinion. We only note that the trial judge's analysis is further buttressed by the general principle governing New Jersey workers' compensation law, that "the remedial policy behind the Workers' Compensation Act encourages courts to apply that act liberally in order 'to bring as many cases as possible within its coverage.'" Aetna Ins. Co. v. Trans American Trucking Serv., Inc., supra, 261 N.J. Super. at 326 (quoting Petrone v. Kennedy, 75 N.J. 295, 303 (App. Div.), certif. denied, 38 N.J. 312 (1962)). Given the fact that the "8102-Seed Merchants" employees resided in New Jersey, occasionally worked here, and could therefore be injured on the job here, Continental's policy was exposed to the potential of New Jersey workers' compensation claims from these workers, and as a result, it was entitled to premiums from Ameritemp in compensation for that coverage.

Affirmed.

 

We note that these factors are listed with approval in Connolly v. Port. Auth. of N.Y. and N.J., 317 N.J. Super. 315, 319 (App. Div. 1998).

(continued)

(continued)

7

A-3504-07T3

February 23, 2009