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CAROL COALSON, his wife,











October 29, 2014


Argued March 12, 2014 Decided

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2019-11.

Paul R. D'Amato argued the cause for appellants (D'Amato Law Firm, P.C., attorneys; Mr. D'Amato and Dominic A. Speziali, on the brief).

Ricky M. Guerra argued the cause for respondent (Lavin, O'Neil, Ricci, Cedrone & DiSipio, attorneys; Mr. Guerra, Joseph E. O'Neil and John J. O'Donnell of the Pennsylvania Bar, admitted pro hac vice, on the brief).

The opinion of the court was delivered by


Plaintiffs Ronald and Carol Coalson1 appeal from a May 3, 2013 order dismissing the personal injury and per quod counts of their complaint with prejudice as to defendant General Motors Company2 (GM). On appeal, plaintiff argues the motion judge erred by failing to draw all reasonable inferences in plaintiff's favor regarding the existence of an agency relationship between his employer, defendant Pellegrino Pontiac Buick GMC, Inc. (Pellegrino), and its franchisor, GM. Plaintiff also contends the judge erred by finding that GM was not vicariously liable for Pellegrino's negligence. We have considered the arguments presented on appeal in light of the record and applicable law, and affirm.


We derive the facts, viewed in the light most favorable to plaintiff, from the record submitted in support of and in opposition to defendant's motion for summary judgment. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). The undisputed facts reveal that on February 7, 2010, plaintiff was moving vehicles on the dealership parking lot when a coworker accidentally backed over him while operating a snow removal pickup truck. As a result of the accident, plaintiff suffered serious injuries to his head, eyelids, eyebrows, ears, teeth, nose, lip, hand, fingers, and back. At the time of the accident, Pellegrino was an authorized dealer of GM vehicles under terms of a Dealer Sales and Service Agreement (dealership agreement) with GM. Pellegrino employed the driver of the truck, as well as plaintiff, who was a manager.

On April 20, 2011, plaintiff filed a civil complaint against GM; General Motors Acceptance Corporation, Inc.; Ally Financial, Inc.; Pellegrino; Mark Anthony, Inc.; Agresta Oldsmobile Pontiac, Inc.; and other unnamed persons and corporations. The complaint alleged negligence of each named defendant except for Pellegrino. As to Pellegrino, the complaint alleged a Laidlow claim3 of intentional and tortious wrongdoing. The claim against GM more particularly alleged liability for the negligent acts of Pellegrino and its employee, the truck driver, by virtue of GM's obligations under the dealership agreement, as well as under the legal theory of vicarious liability. GM filed an answer on June 8, 2011, denying the allegations.

Following discovery, GM moved for summary judgment. At oral argument before Judge Louis R. Meloni, GM argued the evidence did not support an inference that GM had control over the day to day operations at the dealership, specifically the snow removal activities. Plaintiff responded by asserting that when GM's obligations under the dealership agreement were viewed in context with the totality of the circumstances, an inference could be drawn that an agency relationship existed from which GM could be held liable.

The trial court granted summary judgment. It concluded that in accordance with provisions of the dealership agreement, Pellegrino and GM did not intend to create an agency relationship. Moreover, the judge found GM did not direct the day-to-day activities of the dealership and, therefore, could not be held vicariously liable for plaintiff's injuries. This appeal followed.4

On appeal, plaintiff contends the trial court failed to draw reasonable inferences in his favor. More pointedly, plaintiff asserts that from the facts "disputed inferences may be drawn regarding whether GM exercised day-to-day control of the dealership such that an agency relationship existed between Pellegrino and GM." He argues that this determination is properly in the province of the jury, not the judge.


Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The determination of whether there is a genuine issue of material fact should be made viewing all relevant evidence and reasonable inferences "in the light most favorable to the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We review a grant of summary judgment under the same standard as the trial judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). "The inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

In determining whether agency exists, New Jersey applies the standard set forth in section 220 of the Restatement (Second) of Agency (1958) (Reinstatement). Carter v. Reynolds, 175 N.J. 402, 409 (2003). Section 220 provides

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

[Restatement, supra, at 220.]

Our model jury charge is identical to Restatement section 220, with an additional "catch-all" factor, stating that courts should consider "such other factors as may be reasonably considered in determining whether the entity for which the services are being performed control, or has the right to control the person employed." Carter, supra, 175 N.J. at 410). (quoting Model Jury Charge (Civil), 5.10I(A), "Agency" (2011)). In "addition to evidence of direct . . . control," an agency relationship can be established by broad control. Galvao v. G.R. Robert Constr. Co., 179 N.J. 462, 472 (2004).

The motion judge found no agency relationship existed. In making that determination, the judge considered the evidence before him, which included the dealership agreement, the Monroe Township municipal code, and the deposition testimony of the parties. The judge found paragraphs 17.1 and 17.2 of the dealership agreement controlling, and when applied to the Restatement, led to the conclusion that GM was not and could not be held liable for any of Pellegrino's actions.

Plaintiff's reliance on Sloan v. Luyando, 305 N.J. Super. 140 (App. Div. 1997), is misplaced. In Sloan, we considered whether the plaintiff was an employee of the defendant, or as alleged by the plaintiff, an independent contractor. Id. at 148. In that regard, we considered the nature and scope of control exercised. While the level of control factor is considered for purposes of determining whether one is an independent contractor or employee and also whether an agency relationship exists, there are no other similarities between the Sloan case and the present appeal. Here, it is undisputed that GM exercised no day-to-day control over Pellegrino's operations a fact plaintiff's counsel conceded at oral argument.

The question before us is purely a legal one. The dealership agreement states the terms and responsibilities under which Pellegrino and GM agree to do business together. That agreement, when read with provisions of other franchise documents, demonstrates that GM has authority over limited aspects of the dealership's business operations. For example, GM had authority regarding financing matters, advertising and sale promotions, the ordering and distribution of automobiles and parts, and policies regarding dealership employees. However, as the motion judge noted, the plain language of paragraph 17.1 of the agreement makes clear that neither the dealership nor GM intend to be the "agent or legal representative of the other for any purpose," and paragraph 17.2, clearly directs that the dealership "is solely responsible for all expenditures, liabilities and obligations incurred or assumed by [the dealership] for the establishment and conduct of its operations."

Aside from the corporate documents, which negate any inference of agency, the obligations under the dealership lease and municipal code provide further support for the conclusion that GM had no duty or obligation with respect to snow removal activities. The lease agreement for the dealership property, between the landlord, defendant Agresta Oldsmobile Pontiac, Inc. and Pellegrino, requires Pellegrino to "keep and maintain [the property] . . . free from . . . snow and ice."

The lease also delineates that Pellegrino warrants it will comply with all municipal ordinances and laws. The local municipal code, section 249-1, required an owner or tenant of properties abutting a public road to remove all snow and ice within ten hours of daylight following a snowfall. Read together, these additional contractual and legal provisions impose on others and not GM the duty to maintain the dealership property. As such, these proofs, considered as part of the totality of circumstances, support GM's contention that it bears no responsibility for either snow removal or the conduct of Pellegrino's employees.

Plaintiff also relies on Mangual v. Berezinsky, 428 N.J. Super. 299 (App. Div. 2012), arguing that when undisputed facts lead to disputed inferences, "the issue of agency must be resolved by a jury." Our case stands apart from Mangual. There, we determined that summary judgment was inappropriate when the facts, although mostly undisputed, presented a clear dispute as to agency. Id. at 309. Here, however, the facts and inferences are such that no rational jury could arrive at any different conclusion than to find no agency relationship exists.

Based upon our review of the record, giving plaintiff the benefit of all favorable inferences, we conclude that the motion judge correctly determined that there were no genuine issues of material fact and correctly applied the controlling legal principles in granting GM's motion. We agree that no agency relationship existed between Pellegrino and GM. Most importantly, there are no competent facts in the record to suggest that GM exercised any control over the day-to-day operations of the dealership or its employees, or the manner in which the snow removal work was performed. We conclude the relationship between Pellegrino and GM does not evince the degree of control that would warrant the imposition of vicarious liability under agency principles. J.M.L. ex rel. T.G. v. A.M.P., 379 N.J. Super. 142, 152 (App. Div. 2005). As the facts and inferences that can be drawn from the evidence are "so one-sided," summary judgment was appropriate. Brill, supra, 142 N.J. at 540.


1 Because Carol Coalson's claim is derivative of Ronald Coalson's claims, we refer to Ronald Coalson as "plaintiff."

2 Defendant is incorrectly identified in the record. The correct corporate name is General Motors, LLC.

3 Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), held that an employer who causes the death or injury of an employee by committing an intentional wrong will not be insulated from common law suit. Id. at 606. However, if the employer's action was not intentional, a plaintiff's exclusive remedy is through the Workers' Compensation Act. N.J.S.A. 34:15-1 to -142.

4 Plaintiff's claims against all other defendants have been either voluntarily or summarily dismissed with prejudice and are not the subject of any appeal.