RE/MAX OF NEW JERSEY, INC., ET ALS V. WAUSAU INS. CO. ET ALS

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 316 N.J. Super. 514.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6761-96T3
RE/MAX OF NEW JERSEY, INC.,
a corporation of the State
of New Jersey; RE/MAX RESULTS
REAL ESTATE, INC.; LADEN CORP.
t/a RE/MAX REALTY EXPERTS,
RE/MAX FUTURE REAL ESTATE
PROFESSIONALS, INC., O'HERRERA,
INC., t/a VILLA REALTORS,

Plaintiffs-Appellants,

vs.

WAUSAU INSURANCE COMPANIES;
AETNA LIFE & CASUALTY and
NEW JERSEY RE-INSURANCE COMPANY
and PENNSYLVANIA NATIONAL
INSURANCE COMPANY,

Defendants-Respondents
___________________________________

THE TRAVELERS INSURANCE CO.,

Plaintiff-Respondent,

vs.

COMPREHENSIVE REALTY CO., t/a
RE/MAX TRI COUNTY,

Defendant-Appellant.See footnote 1
____________________________________

Argued: November 30, 1998 - Decided: December 8, 1998

Before Judges Havey, Skillman and P.G. Levy.

On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, whose opinion is reported at 304 N.J. Super. 59 (Ch. Div. 1997).

Mark G. Schwartz argued the cause for appellants (Westmoreland, Vesper & Schwartz, attorneys; Mr. Schwartz and Katherine M. Morris, on the brief).

Robert J. Kelly argued the cause for respondent New Jersey Re-Insurance Company (McElroy, Deutsch & Mulvaney, attorneys; Mr. Kelly and John T. Coyne, on the brief).

Jonathan M. Kuller argued the cause for respondents Aetna Life & Casualty, The Travelers Insurance Company and Employers Insurance of Wausau (L'Abbate, Balkan, Colvita & Contini, attorneys; Mr. Kuller, on the brief).

James E. Patterson argued the cause for amicus curiae New Jersey Association of Realtors (Greenbaum, Rose, Smith, Ravin, Davis & Himmel, attorneys; Mr. Patterson, on the brief).

Respondent, Pennsylvania National Insurance Company did not file a brief.

The opinion of the court was delivered by
P.G. LEVY, J.A.D.
Judge Gibson held that plaintiffs were liable for payment of premiums for workers' compensation insurance coverage benefitting its real estate sales agents. Re/Max of New Jersey, Inc. v. Wausau Ins. Cos., 304 N.J. Super. 59 (Ch. Div. 1997). He applied the "relative nature of the work" test, as explained in Kertesz v. Korsh, 296 N.J. Super. 146, 154 (App. Div. 1996), and held that the Re/Max agents are economically dependent on the Re/Max broker, lacking "the ability to act independently." In the course of his opinion, Judge Gibson clearly demonstrated the economic and functional dependence of the sales agents on Re/Max, "mak[ing] any further claim of independence difficult to sustain." Re/Max, supra, 304 N.J. Super. at 68-69. We affirm for the reasons stated therein.
In doing so, we reject plaintiffs' contention that the sales agents are independent contractors pursuant to the dictates of MacDougall v. Weichert, 144 N.J. 380 (1996). MacDougall was not concerned with workers' compensation issues; instead it dealt with a real estate agent's claim for wrongful discharge under Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). In MacDougall, Justice Handler analyzed the differences between an employee and an independent contractor in terms of control. There was no reliance on the "relative nature of the work test" under either Kertesz v. Korsh, supra, 296 N.J. Super. at 154, or Marcus v. Eastern Agric. Ass'n, Inc., 58 N.J. Super. 584, 603 (App. Div. 1959)(Conford, J.A.D., dissenting); rev'd on dissent 32 N.J. 460 (1960). We deem these two cases more appropriate than MacDougall in resolving the issue presented here.
Affirmed.

Footnote: 1 These cases were consolidated in the Chancery Division.