JUSTIN M. SCIARRA, d/b/a AJAX ENTERPRISES v. AMERITEMP, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7118-03T57118-03T5

JUSTIN M. SCIARRA, d/b/a

AJAX ENTERPRISES,

Plaintiff-Respondent,

v.

AMERITEMP, INC.,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Fall and Parker.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-3513-03.

Lenora E. Marshall, attorney for appellant.

Justin Sciarra, respondent, submitted a pro se brief.

PER CURIAM

Defendant Ameritemp, Inc. appeals from an order and judgment entered in the Special Civil Part on July 14, 2004 awarding plaintiff $7,386.72 in damages and court costs on a claim for reimbursement of payments made by plaintiff, Justin M. Sciarra d/b/a Ajax Enterprises (Ajax), to an employee injured while working on defendant's premises.

The complaint alleges that plaintiff's employee, Nicholas Rulli, was "leased" to Merchantville Overhead Doors Co. (Merchantville). On January 11, 2002, Merchantville dispatched Rulli to defendant's premises to repair defendant's overhead doors. Rulli testified that, as he was completing the work, he asked a secretary on defendant's premises to provide a check for $100 when the work was complete. After he asked for the check, Rulli claimed that Jesse Proctor, the president of Ameritemp, came into the area where Rulli was working and started screaming that Rulli should get off of his property. Rulli testified further that, while Proctor was screaming, he kicked the ladder, causing Rulli to fall to the ground. Rulli claimed that he could not move and told his partner, John Rivera, to call the police. While Rulli was waiting for the police, Proctor continued to scream at him and ordered other people to drag Rulli off the premises and onto the street. Ultimately, the police arrived and called an ambulance that took Rulli to the hospital. Rulli suffered injuries to his wrist and neck and was out of work for approximately three months, during which time plaintiff paid his medical expenses and lost wages.

During the trial, the judge asked plaintiff why Rulli had not filed a worker's compensation claim. Plaintiff responded,

I would just ask the Court to take notice that insurance companies do not pay fast, and as an employer it's my duty to my employee to get money in his pocket so he doesn't lose his home, his cars. So I get that into his hand and I pay his medical bills so he gets medical attention. An insurance company by regulation has twenty-one days.

When the judge indicated that it would have been more advantageous for plaintiff to have filed a worker's compensation claim, plaintiff agreed but never adequately explained why Rulli did not file a claim.

Proctor testified at trial that he was present on the day of the incident. He claimed that Merchantville had previously fixed the overhead door and billed $500 for the work. A day after the door was fixed, however, it stopped working and Proctor instructed his office manager to call Merchantville again and have the door repaired. Since he had already paid for the work, when Rulli asked for an additional $100, Proctor told Rulli to call his supervisor. Proctor spoke to the supervisor and stated that he was not going to pay the additional charge. Thereafter, Proctor told Rulli to leave the premises. Rulli said he had to collect his tools and Proctor was escorting him back to the work area when Rulli received a message on his walkie-talkie telling him "to go unset the button, to hit the button." Proctor claimed that after Rulli received the message, Rulli "breaks out in a run, jumps on the ladder . . . The ladder tips over." When Rulli was on the ground, he claimed that he was hurt and needed medical attention. Proctor told him he could not stay there and told Rivera to get help for Rulli. Proctor then told one of his drivers to put Rulli in Rulli's truck. Proctor testified that his driver put Rulli in the truck, collected Rulli's tools and put them in the truck as well. Proctor flatly denied that he kicked the ladder or caused Rulli to fall.

Plaintiff argued that he had standing to bring the claim for reimbursement pursuant to N.J.S.A. 34:15-40 which provides:

Where a third person is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee or his dependents, nor be regarded as establishing a measure of damage therein. In the event that the employee or his dependents shall recover and be paid from the said third person or his insurance carrier, any sum in release or in judgment on account of his or its liability to the injured employee or his dependents, the liability of the employer under this statute thereupon shall be only such as is hereinafter in this section provided.

The remainder of this statute sets forth the parameters for an employee to proceed with a worker's compensation claim while he or she is pursuing a claim against the third party.

After hearing the testimony and the arguments of counsel, the trial judge rendered a written decision in which he initially stated,

Under other circumstances, this would be a very typical, uncomplicated worker's compensation matter to be handled in the Workers' Compensation Court. Unfortunately, the employer of the alleged injured employee has decided to present this case in a manner which could only be detrimental to the rights of the injured employee.

The judge then set forth the findings of facts, essentially adopting Rulli's version of the incident without making credibility findings. The judge determined that plaintiff had standing to file the complaint for reimbursement was pursuant to N.J.S.A. 34:15-40(f), which provides:

When an injured employee or his dependents fail within 1 year of the accident to either effect a settlement with the third person or his insurance carrier or institute proceedings for recovery of damages for his injuries and loss against the third person, the employer or his insurance carrier, 10 days after a written demand on the injured employee or his dependents, can either effect a settlement with the third person or his insurance carrier or institute proceedings against the third person for the recovery of damages for the injuries and loss sustained by such injured employee or his dependents and any settlement made with the third person or his insurance carrier or proceedings had and taken by such employer or his insurance carrier against such third person, and such right of action shall be only for such right of action that the injured employee or his dependents would have had against the third person, and shall constitute a bar to any further claim or action by the injured employee or his dependents against the third person. . . . The legal action contemplated hereinabove shall be a civil action at law in the name of the injured employee or by the employer or insurance carrier in the name of the employee to the use of the employer or insurance carrier, or by the proper party for the benefit of the next of kin for the employee.

Without making any findings with respect to negligence on the part of defendant, the judge awarded damages to plaintiff in the amount plaintiff claimed he paid for Rulli's medical expenses and lost wages.

In this appeal, defendant argues that (1) plaintiff lacks standing to sue for Rulli's injuries under N.J.S.A. 34:8-70; (2) the trial court erred in determining that Rulli was plaintiff's employee since plaintiff alleged that it had leased Rulli to Merchantville Overhead Doors Co.; (3) the trial court erred when it failed to join Merchantville pursuant to R. 4:28-1 and the entire controversy doctrine; and (4) there is insufficient evidence to find defendant liable as a third-party tortfeasor.

An employee need not prove negligence in a worker's compensation claim, the employee need only prove that he or she was an employee and that the injury was sustained during the course of employment. N.J.S.A. 34:15-7; Stroka v. United Airlines, 364 N.J. Super. 333 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004). In a claim against a third party, however, common law negligence must be proven by a preponderance of the evidence for either the employee or the employer to recover damages. See, e.g., Frazier v. N.J. Mfrs. Ins. Co., 142 N.J. 590 (1995).

Here, the trial judge made no findings with respect to liability or negligence, nor did he make specific findings with respect to credibility. Although he recited Rulli's version of the facts, the judge made no finding that Proctor was lacking in credibility. Indeed, the opinion of the trial court indicates that the testimony was not particularly clear with respect to the incident. The trial judge, applying the workers' compensation standard, merely found that Rulli "was in the process of doing the work when he sustained an injury. This injury occurred during the course of his employment." The trial judge apparently believed that was sufficient for plaintiff's standing under N.J.S.A. 34:15-40(f). We disagree.

N.J.S.A. 34:15-40(f) requires that an action against a third-party be brought "in the name of the injured employee or by the employer or insurance carrier in the name of the employee." Here, the action was brought solely in the name of "Justin M. Sciarra d/b/a Ajax Enterprises." Moreover, the statute requires that the employer make a written demand on the injured employee to file an action or settle with the third-party before the employer may file a complaint against the third-party. N.J.S.A. 34:15-40(f). That was not done in this case and we have grave concerns about whether Rulli's rights under the workers' compensation statutes have been protected in the event he needs further medical treatment for the injuries sustained in this incident. N.J.S.A. 34:15-41.

Moreover, plaintiff claims that it "leased" Rulli to Merchantville. Nothing in the record, however, established that plaintiff met the requirements for leasing an employee under N.J.S.A. 34:8-70. The statute expressly requires that "[a]n employee leasing company shall register with the commissioner and provide a list of its client companies, both upon the initial registration of the employee leasing company, and thereafter, annually by January 31st, listing all client companies as of the immediately preceding December 31st." Plaintiff's failure to comply with these statutes precludes it from proceeding in an action for reimbursement of monies paid to its employee for injuries and lost wages.

Ordinarily we remand a matter to the trial court when, as here, it failed to make findings of fact to support the decision and applied the wrong standard. But plaintiff's lack of standing cannot be cured on remand. We are, therefore, constrained to reverse and vacate the judgment of the trial court on the ground that plaintiff lacked standing to bring the action.

 
Reversed and the judgment of the Special Civil Part is vacated.

There was no evidence with respect to Rulli's injuries, other than Rulli's testimony. No medical records were presented, no doctors testified and no medical bills were entered into evidence. Rather, Sciarra presented the testimony of Paul Brown, the office manager for Ajax, who testified that he issued the checks for Rulli's medical expenses and lost wages.

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9

A-7118-03T5

November 23, 2005