MICHAEL F. FUGATT v. DENNISON GRAINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5353-09T3

MICHAEL F. FUGATT,

Plaintiff-Appellant,

v.

DENNISON GRAINE and

DANA TRANSPORT, INC.,

Defendants-Respondents.

________________________________________________________________

SubmittedMay 24, 2011 Decided July 5, 2011

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10363-08.

Mark B. Frost & Associates, attorneys for appellant (Alexandra M. Antoniou, on the brief).

Rawle & Henderson, L.L.P., attorneys for respondents (Carianne P. Torrissi, on the brief).

PER CURIAM

Plaintiff Michael F. Fugatt appeals the trial court's June 11, 2010 order granting summary judgment to defendants Dennison Graine (Graine) and Dana Transport, Inc. (Dana), finding that plaintiff's injury arose out of and in the course of his employment, and his action is therefore barred by the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142. Plaintiff also appeals the trial court's denial of his motion to compel discovery as moot. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff began working as a truck driver in 1986 and began working for Dana in 2006. He leased his 1998 Volvo truck to Dana and agreed to paint it a particular shade of green and use it exclusively for Dana.

At 2:00 a.m. on January 10, 2007, plaintiff was parked on the grounds of Dana in Avanel and was asleep in the berth of his Volvo. He had driven to the lot two hours earlier to sleep as required by federal regulations prior to trucking a load of goods. He testified at his deposition that he had a loaded Dana trailer attached to the Volvo in preparation for its delivery in Springfield, Massachusetts later that morning. Defendant Graine was dropping off a tanker at Dana when his truck backed into the Volvo. The accident was caused by Graine, and plaintiff sustained serious injuries including a herniated disc. Plaintiff's vehicle insurance company paid for the damage to his Volvo as Dana's insurance company was unwilling to do so.

On January 10, 2007, the date of the accident, Dana completed an OSHA1 Form 301 Injury and Illness Incident Report, identifying plaintiff as an employee who was injured and confirming that he was "under dispatch" at the time of the accident. AIG2, Dana's insurance claims administrator, also completed a "Call-In Sheet." Dana additionally produced a two-page document purporting to be a completed "Occupational Accident Medical Claim Form" from the National Union Fire Insurance Company of Pittsburgh (NUFIC), Dana's workers' compensation carrier. This form appears to have been signed by plaintiff on both of its pages on the date of the accident. The form contains two preprinted questions asking whether the individual was injured on the job and whether the patient's injury was related to his employment. Both of these questions are answered affirmatively. Dana also produced an "Employee's Claim Petition" generated by the Division of Workers' Compensation reflecting an electronically filed claim submitted by attorney Robert M. Adochio, Esq. on behalf of plaintiff on October 29, 2007. Plaintiff denied any knowledge of filing this claim.

On March 10, 2008, AIG wrote a letter to defendant Graine as "recovery agents" for NUFIC, indicating that plaintiff had presented a claim for workers' compensation benefits stemming from a January 10, 2007 loss.

Plaintiff filed his complaint against defendants on December 10, 2008, and the discovery period ended on April 19, 2010. Defendant provided discovery responses on November 20, 2009, and fact witnesses were deposed on January 11, 2010. Plaintiff did not file his motion to compel discovery until May 26, 2010, more than a month after the discovery end date and after defendants had filed a motion for summary judgment. In his motion, plaintiff sought the documents he had requested at the deposition on January 11, 2010, and in his counsel's letter of April 16, 2010, consisting of "all computer-generated logs and/or records from the date of the accident" and "all records from [defendants] as they relate to reporting the matter to their insure[r] as well as any records relating to submitting the property damage to the [p]laintiff's vehicle to [d]efendant's insure[r]." On April 19, 2010, defendants responded that the requests were overly broad, unduly burdensome and went beyond the request at deposition.

On appeal, plaintiff argues that "the core issue in this case is whether the [p]laintiff was in the course of employment at the time of the accident." Plaintiff argues that he needed the requested documents to demonstrate that he was not in the course of employment at the time of the accident.

As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

A party may file a summary judgment motion at any time after thirty-five days from the service of the complaint. R. 4:46-1. Although discovery frequently should be completed before the court entertains summary judgment, see Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206 (1963), that general practice need not be observed in cases where it is readily apparent that continued discovery would not produce any additional facts necessary to a proper disposition of the motion. See R. 4:46-5 (authorizing courts to deny or continue summary judgment motions to accommodate further discovery of facts that would be "essential" to oppose the motion).

A claim of incomplete discovery will not defeat a summary judgment motion where, as here, the party opposing the motion has not sought discovery within the time prescribed by Court Rules. Liberty Surplus Ins. Corp., supra, 189 N.J. at 450-51. Plaintiff did not have good cause to file a discovery motion that was returnable almost two months after the expiration of the discovery period. R. 4:24-2.

Plaintiff does not contest that he is an employee of Dana rather than an independent contractor. See Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 280 (App. Div. 1998); Tofani v. Lo Biondo Bros. Motors Express, Inc., 83 N.J. Super. 480, 484-85 (App. Div.), aff d, 43 N.J. 494 (1964).

"An employee is entitled to compensation for an accidental injury under the [Act] if the injury 'ar[ose] out of and in the course of employment.'" Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 346 (App. Div. 2010) (alteration in original) (quoting N.J.S.A. 34:15-7) (citations omitted), certif. denied, 201 N.J. 443 (2010); see also Jumpp v. City of Ventnor, 177 N.J. 470, 476 (2003); Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.), certif. denied, 195 N.J. 418 (2008). The definition of "employment" under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer's premises but nevertheless is "engaged in the direct performance of duties assigned or directed by the employer[.]" N.J.S.A. 34:15-36; see also Cooper, supra, 411 N.J. Super. at 346.

To find that an accident arose out of employment, it must be established that the work was "at least a contributing cause of the injury and that the risk of occurrence was reasonably incident to the employment." Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 236 (App. Div. 2005).

Employment begins when an employee arrives at the place of employment to report for work and ends when the employee leaves the place of employment. N.J.S.A. 34:15-36. "The definition describing when employment begins and ends is known as the 'premises rule' and it distinguishes between an accident that occurred on the employer's premises and one which did not." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 350 (App. Div. 1999). The fact that an employee was "off the clock" at the time of an accident does not automatically preclude compensability under the Act because "the situs of the accident is a dispositive factor." Acikgoz, supra, 398 N.J. Super. at 88 (citing Brower v. ICT Group, 164 N.J. 367, 372 (2000)). "An employee may be found to have been in the course of employment and entitled to compensation even when he was not currently engaged in work duties, if the accident occurred on the employer's premises." Ibid.; see also Kristiansen v. Morgan, 153 N.J. 298, 317 (1998) (holding that the fatal injury of an employee was compensable under the Act where it occurred on the employer's property after the employee had clocked out of work), modified on other grounds, 158 N.J. 681 (1999). In Livingstone v. Abraham & Strauss, Inc., 111 N.J. 89, 91 (1988), the Court held that an employee who worked for a store in a mall was entitled to workers' compensation benefits for an injury she sustained from a car driven by a fellow employee in the mall parking lot before beginning her shift for the day. In finding that the injury was compensable under the Act, the Court emphasized that although the employer did not maintain or rent any portion of the parking lot, it instructed employees to park in a designated area of the lot. Id. at 104-05.

In the present case, plaintiff was paid for each load he transported and was required by the Federal Motor Carrier Safety Regulations for commercial drivers to sleep prior to driving this load from New Jersey to Massachusetts. See 49 C.F.R. 395.3. The load destined for Massachusetts was hooked up to his Volvo tractor, and he was sleeping in the sleeping berth of the tractor on Dana's property when the accident occurred.

Although plaintiff argues that the issue of whether he was in the course of his employment was materially in dispute, we agree with the trial court that, indisputably, plaintiff's "duties as a truck driver are what led [him] to be sleeping in his tractor where and when the accident occurred." No further discovery sought by plaintiff could have shed doubt on the plain fact that plaintiff was on Dana's property preparing to transport a load by sleeping the required hours prior to departure.

We also agree with the court that because "plaintiff's injury is compensable under the [Act], Graine, a fellow employee of Dana, engaged in the scope of employment is also immune from tort liability under N.J.S.A. 34:15-8." Wunschel v. City of Jersey City, 96 N.J. 651, 659 (1984) (stating that "[t]he purpose of this section is to make workers' compensation the injured worker's exclusive remedy with respect to both the employer and the co-employee, except where there is some intentional wrong").

1 OSHA stands for the United States Department of Labor Occupational Safety and Health Administration.

2 AIG Claim Services, Inc. is a member company of American International Group, Inc.