PATRICIA WILSON v. SYNAGRO TECHNOLOGIES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1750-07T11750-07T1

PATRICIA WILSON,

Plaintiff-Appellant,

v.

SYNAGRO TECHNOLOGIES, INC.,

SYNAGRO-WCWNJ, INC., and

WASTE MANAGEMENT OF NEW JERSEY,

Defendants-Respondents.

________________________________________________________________

 
Argued telephonically on October 23, 2008 -

Decided

Before Judges Fisher and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-180-06.

Elizabeth D. Berenato argued the cause for appellant (Smith, Magram, Berenato & Michaud, P.C., attorneys; Ms. Berenato, of counsel and on the brief).

Vito A. Pinto argued the cause for respondent, Synagro Technologies, Inc., Snyagro-WCWNJ, Inc., (Lindabury, McCormick Estabrook & Cooper, P.C., attorneys; Mr. Pinto, on the brief).

PER CURIAM

Plaintiff, Patricia Wilson, appeals from a November 16, 2007 order granting summary judgment to defendant, Synagro Technologies, Inc., Synagro-WCWNJ, Inc., (Synagro), thereby dismissing her personal injury complaint. The Law Division ruled that as a matter of law plaintiff was a "special employee" of Synagro and, therefore, was precluded from instituting suit against her "special employer" by virtue of N.J.S.A. 34:15-8. We affirm.

I.

On January 19, 2004, plaintiff was injured when she slipped and fell on ice while crossing the parking lot to enter Synagro's place of business. At the time, plaintiff was employed by an employment agency, Uptown Personnel, which had placed plaintiff with Synagro as a temporary employee. As a result of the injuries plaintiff sustained when she fell, she was absent from work at Synagro for several hours three times each week to attend doctors' appointments. Those absences caused her supervisor Linwood Bubar, to complain to Uptown that plaintiff's frequent absences were interfering with her responsibilities of answering the phone and handling accounts receivables.

Bubar scheduled a meeting with plaintiff and a representative of Uptown, which ended with an agreement that Uptown would remove plaintiff and replace her with someone else. Plaintiff testified at her deposition that Uptown agreed to remove her from Synagro's premises to "keep their customer [Synagro] happy." Plaintiff's claim for workers' compensation benefits was paid by Uptown without any contribution from Synagro.

On March 28, 2007, plaintiff filed a complaint in the Law Division against Synagro, alleging that on January 19, 2004, while "in the course of her employment with Uptown Personnel and doing business on the premises of Synagro Technologies, Inc., Synagro-WCWNJ," she "f[e]ll as a result of . . . Synagro['s] . . . failure to . . . keep [its] premises free and clear of ice and/or snow . . . ." After completion of discovery, Synagro moved for summary judgment, arguing that plaintiff was a "special employee" of Synagro and therefore her workers' compensation recovery against one employer, Uptown, prevented her from maintaining a tort action against the other, namely Synagro, for the same injury.

On November 16, 2007, in a written opinion, Judge Hogan held that plaintiff was a "special employee" of Synagro, and therefore, Synagro was "entitled to invoke the exclusive remedy provision of the Workers' Compensation Act to bar plaintiff from seeking damages for her injury arising from her January 2004 accident." He entered an order granting summary judgment in favor of Synagro and dismissed plaintiff's complaint.

II.

On appeal, we apply the same standard as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This requires a review of the competent evidential materials in the light most favorable to the non-moving party to determine whether a rational fact-finder could resolve the issue in favor of the non-moving party. Ibid.

The Workers' Compensation Act (Act) provides an employee with an "exclusive remedy" against the employer for injuries arising out of and in the course of employment. N.J.S.A. 34:15-8. "In exchange for receiving workers' compensation benefits, which are awarded without regard to fault, the employee surrenders common law tort remedies against his or her employer . . . except for intentional wrongs." Walrond v. County of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006). As we observed in Walrond, our courts "have developed a doctrine that recognizes that under workers' compensation, an employee can 'have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from making a tort action against the other for the same injury.'" Ibid. (quoting Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)). The "special employee" doctrine developed largely from situations where a temporary employment agency lends one of its employees to a client of the agency, here Synagro. See Id. at 234-35. To determine whether a special employment relationship exists, thereby precluding the employee from maintaining a tort action, we apply a five-prong test:

(1) the employee has made a contract of hire, expressed or implied, with the special employer;

(2) the work being done by the employee is essentially that of the special employer;

(3) the special employer has the right to control the details of the work;

(4) the special employer pays the employee's wages; and

(5) the special employer has the power to hire, discharge or recall the employee.

[Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 571-72 (App. Div.), aff'd o.b., 147 N.J. 42 (1996).]

Plaintiff concedes that the first three prongs of the Kelly test are satisfied, but maintains that the motion judge wrongly concluded that the remaining two were not. In particular, she maintains that her wages were paid by Uptown, not Synagro, and that it was Uptown, and only Uptown, that had the power to remove her from her position at Synagro.

As to the question of who paid plaintiff's wages, which is addressed by the fourth prong, we commented in Walrond that this factor "traditionally . . . has not been given great weight." Walrond, supra, 382 N.J. Super. at 237. We commented that "[i]n fact, we have previously stated that 'this factor is not necessary for determination that a special employment relationship exists.'" Ibid. (quoting Kelly, supra, 287 N.J. Super. at 577).

We observed in Walrond that the wage-payment-factor is generally given only slight weight because the money used to pay the employee's wages comes out of the fees paid to the employment agency by the borrowing employer for the employee's services. Ibid. Indeed, the net result is almost invariably that the special employer ultimately pays for the services received and the employee ultimately gets his wages." Ibid. (quoting Santos v. Std. Havens, Inc., 225 N.J. Super. 16, 24 (App. Div. 1988)). Thus, as we concluded in Walrond, it is of no significance that the temporary agency issued the paycheck because the underlying source of the income received by the employee is derived from the special employer. Id. at 237-38. Consequently, we reject plaintiff's contention that the fourth prong of the Kelly test was not satisfied.

The fifth factor requires us to consider whether "the special employer has the power to fire, discharge or recall the employee." Kelly, supra, 387 N.J. Super. at 571-72. Unquestionably, Synagro had full control over whether plaintiff would continue to work at its plant. When Bubar became dissatisfied with plaintiff's chronic absenteeism, it was he who convened the meeting with Uptown and it was his dissatisfaction that caused Uptown to remove plaintiff from Synagro's plant and replace her with someone else. On identical facts, we held in Kelly that such a scenario was "the functional equivalent of the power to discharge" the employee. Id. at 577. Consequently, we agree with Judge Hogan's conclusion that because it was Synagro's dissatisfaction that led Uptown to remove plaintiff from Synagro's premises, the fifth prong was satisfied.

As we held in Kelly, "[t]he question of whether an employment relationship exists is reserved for the trier of fact where this is a conflict in the evidence or the inferences to be drawn from it." Id. at 577-78. However, here, as in Kelly, "there is no such conflict and the question is one only of law, properly resolved by summary judgment. It is apparent that plaintiff was a special employee of [Synagro] at the time of her fall and that she is thereby precluded from maintaining the present action against her special employer." See Id. at 578. Judge Hogan properly granted summary judgment to Synagro.

Affirmed.

Although plaintiff's notice of appeal specifies that she appeals from the order of September 20, 2007, dismissing her complaint against Waste Management, Inc., the issue was not briefed on appeal. At argument, plaintiff's counsel informed us that plaintiff has chosen to limit her argument on appeal to the dismissal of her complaint against Synagro. Consequently, we deem the issue regarding Waste Management to be abandoned and will not address it.

(continued)

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A-1750-07T1

November 12, 2008