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Florentine v. McDonough

Decided: March 28, 1978.

NEMO FLORENTINE, PETITIONER-RESPONDENT AND CROSS-APPELLANT,
v.
R. A. MCDONOUGH & CO., RESPONDENT-APPELLANT AND CROSS-RESPONDENT



On appeal from the Division of the Worker's Compensation.

Michels, Pressler and Bilder. The opinion of the court was delivered by Michels, J.A.D.

Michels

[158 NJSuper Page 17] Respondent R. A. McDonough & Co. appeals from a judgment of the Division of Workers' Compensation awarding partial dependency benefits to petitioner Nemo Florentine and his wife Gertrude Florentine as a

result of the work-connected death of their son, decedent Frederick Florentine. Petitioner cross-appeals from that portion of the judgment establishing the weekly compensation rate.

Decedent was employed by respondent as a pilot to operate an airplane that respondent had leased for use in connection with corporate business. He was killed in a crash while piloting the aircraft. Petitioner filed a dependency claim petition alleging that decedent's death arose out of and in the course of decedent's employment. Additionally, the petition claimed that he and his wife were dependent upon decedent and hence are entitled to compensation under the Workers' Compensation Law of New Jersey. Respondent conceded that decedent's death was work-related, but denied that petitioner and his wife were dependents of decedent.

The proofs established that decedent had resided with his parents prior to his death and had contributed approximately $200 a month to the household from his earnings of $20,000 a year. On occasion he also gave his parents gifts, such as an automatic garage door opener and a home freezer. He also contributed approximately $10,000 towards the down payment of their present home. In addition, decedent did much of the maintenance and repair work around the house, such as regularly cutting the lawn and shoveling snow. The proofs also showed that decedent's contributions were relied upon by petitioner and his wife to maintain their mode or standard of living, which was much higher while decedent was alive. In fact, petitioner testified that it has been rather difficult for them to meet their bills since decedent's death. He also testified that after his son died he had to hire someone to cut the lawn at $4.50 an hour and to shovel the snow at $20 each snowfall. In general, he must now pay others to do work that decedent had formerly done.

At the conclusion of the trial the judge of compensation found that petitioner and his wife were dependents of decedent. She further found that decedent contributed to the

household $200 a month in cash and $340 a year in services. The judge computed the "partial dependency rate" at $16.30 a week and awarded petitioner benefits of $7,335. This appeal followed.

Respondent contends that petitioner and his wife were not dependents of decedent. We disagree. N.J.S.A. 34:15-13, in pertinent part, provides:

f. The term "dependents" shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or the occurrence of occupational disease, or at the time of death, namely: Husband, wife, parent, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half brothers, half sisters, niece, nephew. Legally adopted children shall, in every particular, be considered as natural children. Dependency shall be conclusively presumed as to the decedent's widow and to the natural children under 18 years of age of a male or female decedent who were actually a part of the decedent's household at the time of his death. Every provision of this article applying to one class shall be equally applicable to the other. Should any dependent of a deceased employee die during the period covered by such weekly payments the right of such dependent to compensation under this section shall cease but should the widow of a deceased employee remarry during such period and before the total compensation is paid, she shall be entitled to receive the remainder of the compensation which would have been due her had she not remarried, or $1,000.00 whichever is the lesser. The foregoing schedule applies only to persons wholly dependent, and in the case of persons only partially dependent, except in the case of the widow and children who were actually a part of the decedent's household at the time of his death, the compensation shall be such proportion of the scheduled percentage as the amounts actually contributed to them by the deceased for their support constituted of his total wages and the provision as to a $15.00 minimum shall not apply to such compensation. * * *

Chief Justice Weintraub, in his opinion in Ricciardi v. Damar Products Co. , 45 N.J. 54 (1965), points out that

A showing of actual dependency does not require proof that, without decedent's contributions, claimant would have lacked the necessaries of life. The test is whether his contributions were relied on by claimant and to ...


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