CARMEN MAYORGA v. RUSSO FAMILY LIMITED PARTNERSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2124-09T32124-09T3

CARMEN MAYORGA and

FERMIN MAYORGA, her

husband,

Plaintiffs,

v.

RUSSO FAMILY LIMITED

PARTNERSHIP, PETER O.

BRYN,

Defendants,

and

PETER O. BRYN GENERAL

CONTRACTOR,

Third-Party Plaintiff/

Respondent,

v.

JP MORGAN CHASE BANK,

Third-Party Defendant/

Appellant.

_______________________________________

 

Argued May 17, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9036-07.

Robert M. Brigantic argued the cause for appellant (Maloof, Lebowitz, Connahan & Oleske, P.A., attorneys; Mr. Brigantic, on the brief).

John J. Leo, III, argued the cause for respondent (Kaufman Borgeest & Ryan, L.L.P., attorneys; Mr. Leo, on the brief).

PER CURIAM

JP Morgan Chase Bank (Chase) appeals by leave granted from an order entered by the Law Division on July 31, 2009, denying its motion to dismiss a third-party claim asserted against it by Peter O. Bryn General Contractor (Bryn), and an order entered on October 9, 2009, denying its motion for reconsideration. We reverse.

This appeal arises from the following facts. Russo Family Limited Partnership (Russo) owns an office building at 600 Commerce Boulevard in Carlstadt, New Jersey, and leased the premises to Chase, pursuant to a lease agreement dated March 13, 2000. The lease provides in pertinent part that Chase shall, at its own cost and expense, maintain the interior and exterior of the leased premises.

Chase entered into a contract dated October 15, 2003, with Bryn, under which Bryn was required to provide snow removal and related services. Among other things, the contract stated that Bryn would remove snow and ice from the roadways, drives, parking lots and other areas in the leased premises. The contract detailed the services that Bryn would provide and stated that the services would be performed "without notification" from Chase.

Carmen Mayorga (Mayorga) is one of Chase's employees. On December 11, 2007, Mayorga and her husband, Fermin Mayorga, filed a complaint in the Law Division, and named Russo and Bryn as defendants. Plaintiffs alleged that, on December 12, 2005, Russo and Bryn negligently and carelessly permitted the parking lot and adjacent sidewalk on the premises at 600 Commerce Boulevard in Carlstadt "to become snow covered, wet, slippery, icy, and otherwise [permitted these areas] to remain in an unsafe and dangerous condition." Plaintiffs alleged that Mayorga was walking to the aforesaid parking lot/sidewalk and "slipped and fell due to the icy and otherwise unsafe and dangerous condition." Mayorga sought damages for her personal injuries, and her husband asserted a claim for the loss of his wife's services and consortium.

Bryn thereafter filed an answer, cross-claims and a third-party complaint against Chase. In count one of the third-party complaint, Bryn asserted a claim against Chase for contribution pursuant to the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, to the extent that any of plaintiffs' injuries or damages "were proximately caused by" Chase's "carelessness and negligence[.]" In count two of the third-party complaint, Bryn asserted a claim against Chase for "full indemnification" if plaintiffs sustained any injuries or damages due to Chase's "primary negligence[.]" Chase filed an answer denying liability.

In March 2009, Chase filed a motion to dismiss Bryn's third-party complaint. The court heard argument on the motion on May 15, 2009, and issued an order on July 31, 2009, denying the motion. The court appended a rider to the order, in which it set forth its reasons for denying Chase's motion.

The court wrote that Chase's motion was premature because there were genuine issues of material fact. The court stated that Bryn had alleged that Chase had a contractual duty to notify it if its performance of the snow/ice removal services was in any way deficient. The court additionally noted that Bryn also had claimed that Chase's actions or omissions could have caused or contributed to plaintiff's injuries.

The court also wrote that the subject snow/ice removal contract was ambiguous. The court noted that the agreement expressly provided that Bryn would indemnify Chase for claims arising out of the performance of the contract, but the indemnity provision in the contract was silent as to negligence created by Chase's own acts or omissions.

The court additionally stated that there was a "question of fact as to whether [Chase] had agreed to timely notify Bryn of deficiencies or problems in Bryn's performance under the contract." In addition, the court stated that there was a genuine issue of fact as to whether Chase's failure to notify Bryn had contributed to Mayorga's personal injuries and discovery was required to resolve that issue.

Thereafter, Chase filed a motion in seeking reconsideration of the court's July 31, 2009 order. The court heard arguments on this motion on September 11, 2009, and filed an order dated October 9, 2009, denying the motion. In a rider attached to the order, the court set forth its reasons for denying the motion. The court wrote that the motion was premature. The court observed that previously it had not rejected Chase's arguments but had merely determined that "there were genuine issues of material fact which should be addressed by discovery regarding . . . the intent and purpose of [the snow/ice removal] contract" and Chase's responsibilities under that agreement.

The court additionally wrote that it was not persuaded the exclusive remedy provision of the Workers' Compensation Act (WCA), N.J.S.A. 34:15-8, barred Bryn's third-party claim against Chase. The court stated that this case did not involve a claim for contribution against an employer whose concurring negligence allegedly contributed to the employee's injury.

The court also wrote that, in this case, "there was contractual privity that could be found to go beyond the traditional employer-employee relationship[.]" In addition, the court stated that there was a need for further discovery concerning the relationship of the parties, especially as to whether Chase had an affirmative duty to act and how its alleged failure to act "may relate to" the subject accident.

On appeal, Chase argues that the court erred by failing to grant its motion to dismiss Bryn's third-party complaint because: 1) the WCA bars all claims against it based on negligence; 2) Bryn has no right to common law indemnification in the case; 3) Bryn is not entitled to contractual indemnification; and 4) its motion to dismiss was not premature.

We turn first to Chase's contention that Bryn's claims against it for contribution are barred by the WCA.

The WCA provides an employee with "the exclusive remedy against the employer for a work-related injury sustained by [the] employee." Ramos v. Browning Ferris Industries, Inc., 103 N.J. 177, 183 (1986) (citing N.J.S.A. 34:15-8; Estelle v. Bd. of Educ. of Red Bank, 14 N.J. 256 (1954)). An agreement by the employee and employer to accept the WCA represents "'a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in'" the WCA. Id. at 184 (quoting N.J.S.A. 34:15-8). An "employer cannot be a joint tortfeasor, [and] it is not subject to the provisions of the [JTCL][.]" Ibid. The WCA accordingly "precludes a claim for contribution against an employer whose concurring negligence contributed to the injury of an employee." Id. at 185.

It is undisputed that Mayorga is Chase's employee. She allegedly slipped and fell on black ice in the parking lot/sidewalk area adjacent to the building where she worked. Chase's workers' compensation carrier, Liberty Mutual Insurance company, has been paying workers' compensation benefits to Mayorga. Bryn seeks contribution from Chase on the ground that Mayorga's injuries were due in part to Chase's negligence, specifically Chase's failure to notify and inform Bryn that its snow/ice removal work was inadequate. We are convinced that, under the circumstances, the WCA bars Bryn's third-party claim against Chase for contribution.

The trial court reasoned that there was a genuine issue of material fact as to whether Chase had a duty under the contract to inform Bryn that its snow/ice removal work was deficient. Even were we to agree that there was a genuine dispute on that fact issue, it would not be material to Bryn's claim for contribution under the JCTL. Bryn's claim is that Chase owed a duty to Mayorga and, because Chase allegedly breached that duty, Chase should be required to contribute to the damages sustained by her as a result of the breach. Ramos holds that such a claim is barred by the WCA. Id. at 184. We therefore conclude that the trial court erred by denying Chase's motion to dismiss Bryn's claim for contribution.

We turn to Chase's contention that the trial court erred by denying its motion to dismiss Bryn's claim for implied or contractual indemnification. "As a general rule, a third party may recover on a theory of implied indemnity from an employer only when a special legal relationship exists between the employer and the third party, and the liability of the third party is vicarious." Id. at 188-89 (citing Arcell v. Ashland Chem. Co., Inc., 152 N.J. Super. 471, 488-89 (Law Div. 1977); Ruvolo v. United States Steel Corp., 139 N.J. Super. 578, 583 (Law Div. 1976)). Moreover, "the relationship between vendor and vendee" is not the sort of special relationship that will "support a claim for implied indemnification by a third-party vendor against an employer-vendee." Id. at 189 (citing Arcell, supra, 152 N.J. Super. at 490-91; 2A Larson, Workmen's Compensation Law 76.84 at 14-751 (1982)).

Here, there is no basis for Bryn's claim against Chase for implied indemnification. Bryn and Chase have a vendee-vendor relationship. Furthermore, a claim for implied indemnification seeks to impose vicarious liability. Ibid. Bryn is not seeking to impose liability upon Chase for Bryn's negligence. Rather, it is seeking indemnification for liabilities resulting from Chase's alleged negligence.

There also is no basis for Bryn's claim against Chase for contractual indemnification. As the trial court pointed out in the rider to its July 31, 2009 order, although the snow/ice removal contract provides that Bryn must indemnify Chase for claims arising from Bryn's performance of the services, the "indemnity provision is silent as to negligence created by [Chase's] own acts or omissions." The court said that the agreement was ambiguous and discovery was required to determine the intent and purpose of this provision of the contract.

We disagree. The agreement is not ambiguous. The contract plainly requires Bryn to indemnify Chase for, among other things, the negligent performance by Bryn of the contracted-for services. It does not require Bryn to indemnify Chase for Chase's negligence. Further discovery on this issue was not required to determine the intent of the parties, which is reflected in the plain language of the contract. Because further discovery was not required, it was not premature for a determination that Bryn's claim for contractual indemnification was entirely without merit.

The orders of July 31, 2009, and October 9, 2009, are reversed and the matter remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

 

(continued)

(continued)

10

A-2124-09T3

June 21, 2010