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October 23, 2014


Argued October 8, 2014 Decided

Before Judges Fuentes, Ashrafi, and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No.


Ronald J. Morgan argued the cause for appellant (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P., attorneys;

John J. Megjugorac, on the brief).

Amanda J. Sawyer argued the cause for respondents (Methfessel & Werbel, attorneys; Ms. Sawyer, of counsel and on the brief).


In this slip-and-fall personal injury case, the issue is whether plaintiff Mirtala Pineda is barred under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, from pursuing a tort claim against defendants Hector and Sheila Zulueta because they were her "special employer." The trial court granted summary judgment to defendants on that ground. We affirm.

Plaintiff was working full-time as a nanny and housekeeper in defendants' home when she fell in their backyard and broke her ankle. She filed a personal injury complaint against them in March 2012 alleging that defendants negligently maintained a dangerous and defective condition on their property that caused her injury. Defendants denied liability. After discovery, defendants moved for summary judgment based on the workers' compensation bar to the tort liability of an employer. The trial judge granted defendants' motion, and plaintiff appeals.

We conduct plenary review of an order granting summary judgment, and we apply the same standard under Rule4:46-2(c) that governs the trial court. Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J.86 (2013). We 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). Here, the summary judgment record shows the following facts viewed most favorably to plaintiff.

Plaintiff immigrated to the United States from El Salvador in about January 1990, and immediately became employed by Artime, Inc., which was doing and continues to do business as Cardel Jewelers located in New York City. Artime is owned by defendant Hector Zulueta's mother, Nilda Zulueta. From 1990 to 2004, plaintiff's job was to clean the jewelry store in New York as well as Nilda Zulueta's home in North Bergen, New Jersey.

Hector Zulueta also lives in North Bergen and works in the jewelry store in New York. In 2004, Nilda Zulueta directed plaintiff to work full-time at the home of Hector and his wife Sheila Zulueta. From 2004 to 2011, plaintiff worked Monday through Friday from about 8:30 a.m. to at least 5:00 p.m. in defendants' home. She was a nanny for their three children, and also cooked, cleaned, did laundry, and even picked up in the yard after the family dog. Defendants directed her day-to-day work duties and controlled her working conditions in their home.

On weekends, plaintiff cleaned the jewelry store and sometimes Nilda Zulueta's home. Even after plaintiff became defendants' full-time nanny and housekeeper, Artime continued to pay plaintiff's wages. At no time did defendants pay wages to plaintiff.

On January 27, 2011, while in defendants' backyard intending to clean dog waste, plaintiff slipped and broke her ankle. Plaintiff filed a worker's compensation claim in New York against Artime and eventually received benefits. She also filed a worker's compensation claim against defendants in New Jersey, but she dismissed the New Jersey claim in August 2013. Our record on this appeal does not contain either of the two worker's compensation claim petitions or other submissions in the Workers' Compensation Court. At oral argument before us, plaintiff's counsel represented that plaintiff voluntarily dismissed her claim against defendants after learning she would receive benefits from Artime.

The Workers' Compensation Act provides an employee with an exclusive remedy against anemployer for injuries arising out of and in the course of employment. Walrond v. Cnty. of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006); N.J.S.A. 34:15-1, -7, -8. In exchange for receiving benefits under the Act, the employee is barred from pursuing tort remedies against the employer and co-employees, except for injuries caused by intentional wrongs. Walrond, supra, 382 N.J. Super. at 234 (citing N.J.S.A. 34:15-8; Ramos v. Browning Ferris Indus., 103 N.J.177 (1986)).

An employee may have more than oneemployer, and each employer may be liable under the Act's provisions entitling an injured employee to compensation. Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). In turn, each employer may be shielded from tort liability for the employee's injuries. See Walrond, supra, 382 N.J. Super. at 234. "[R]ecovery against one [employer] bars the employee from maintaining a tort action against the other for the same injury." Ibid. (quoting Antheunisse, supra, 229 N.J. Super. at 402); Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 429-30 (App. Div. 1967)).

In examining whether an employee has more than one employer, courts have utilized both a "joint employment" analysis, e.g., Hall v. Fanticone, 322 N.J. Super. 302, 307 (App. Div.) certif. denied, 162 N.J. 487 (1999), and a "special employment" analysis, e.g., Blessing, supra, 94 N.J. Super. at 430-31. In this case, the trial court relied on the "special employment" analysis to find the workers' compensation bar applicable.

The special employment analysis is used primarily where a temporary employment agency lends one of its employees to a client of the agency. See Walrond, supra, 382 N.J. Super. at 234-35. In such situations, the employee is considered to be temporarily employed by the borrowing or "special employer." Id. at 235. The question is whether the work relationship bears sufficient indicia of employment to invoke the rights and remedies provided by the Act.

In Blessing, supra, 94 N.J. Super. at 430, we described a five-factor test to determine whether a special employment relationship exists. The court must consider whether: 1) an express or implied contract existed between the special employee and the special employer; 2) the work was essentially that of the special employer; 3) the special employer had the right to control the details of the work; 4) the special employer paid the employee's wages; and 5) the special employer had the power to hire, release, or re-hire the employee. Ibid.

Courts consider the totality of the circumstances when applying the test. See Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 22 (App. Div. 1988). "No single factor is 'necessarily dispositive, and not all five must be satisfied in order for a special employment relationship to exist.'" Walrond, supra, 382 N.J. Super. at 236 (quoting Marino v. Indus. Crating Co., 358 F.3d 241, 244 (3d Cir. 2004)).

Here, with respect to the first Blessing factor, plaintiff disputes that any employment contract existed between defendants and her. But the fact that Nilda Zulueta initially directed plaintiff to work at defendants' home does not mean that plaintiff had no employment agreement with defendants. On this record, the trial court appropriately found that plaintiff had an oral agreement with defendants. For almost seven years until the time of her fall and injury, plaintiff took direction from defendants and performed services for their benefit in their home. She was paid for her services, albeit not directly by defendants. These facts showed there was an implied employment contract. See Pacenti v. Hoffman-La Roche, Inc., 245 N.J. Super. 188, 192 (App. Div. 1991); Blessing, supra, 94 N.J. Super. at 437-38; see also, Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 572, 574-75 (App. Div.), aff d, 147 N.J. 42 (1996) (The conduct of the parties created an implied contract despite an express written agreement to the contrary.).

Next, with respect to the second factor listed in Blessing, plaintiff argues that defendants are "not business owners," thus suggesting they could not be her employers. But one need not be a business entity to employ others to perform services. Plaintiff's taking care of defendants' children, cleaning their home, cooking for them, doing their laundry, and other similar tasks, all under the direction of defendants, showed that plaintiff was employed by defendants. Although plaintiff also continued to clean the jewelry store and Nilda Zulueta's house on weekends, she changed her full-time employer in 2004 by performing services primarily for defendants rather than Artime.

Next, plaintiff argues that the third Blessing factor was not met because there is no evidence that defendants "instructed plaintiff specifically on how to clean or how to take care of their children." This argument is obviously devoid of any merit. There is no evidence that Nilda Zulueta or any other supervisor at Artime gave day-to-day instructions to plaintiff about what to do in defendants' home and how to do it. In fact, plaintiff testified in her deposition that defendants and no one else instructed her "what specific work needed to be done at their house."

The fourth Blessing factor, who paid the special employee's wages, favors plaintiff's argument that she was an employee of Artime and not defendants, but it is not controlling in this case. While the parties did not include in the record why Artime continued to pay plaintiff's wages, the only reasonable explanation is that defendants were deriving some tax or other benefits by having the family business retain their personal nanny and housekeeper on its books as the business's employee.

We are not in a position on this appeal to pronounce whether defendants violated any tax or employment laws, and neither party has raised that issue. In fact, no one presented to the trial court any argument as to judicial or equitable estoppel as a potential basis for determining the employment relationship and application of the workers' compensation bar. We leave it to others, if appropriate, to address the lawfulness of defendants' employment of plaintiff and their potential liability for income and other taxes that may have arisen as a result of the facts we have described. Because "[n]o single factor is necessarily dispositive," Walrond, supra, 382 N.J. Super. at 236, the fact that plaintiff continued to receive all her wages from Artime did not exclude defendants as her special employers.

Finally, the last Blessing factor looks to whether the special employer had the power to hire, terminate, or rehire the special employee. As to this point, plaintiff's appellate brief contends that a question of fact exists because plaintiff testified that no one had the power to fire her. Plaintiff's perception of that unusual employment status did not create a "genuine issue of material fact." Brill, supra, 142 N.J. at 540. There is no evidence that plaintiff was granted lifetime employment without any right retained by defendants to terminate her services in their home and with their children.

Because four of the five Blessing factors showed that plaintiff was a special employee of defendants, and the fifth factor is not dispositive, the trial court correctly concluded that the workers' compensation bar prohibits plaintiff from suing defendants for tort recovery.