On Appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels, Shebell and Gaynor. The opinion of the court was delivered by Michels, P.J.A.D. Shebell, J.A.D., dissenting.
[225 NJSuper Page 18] Plaintiff Ana Santos, as Administratrix ad prosequendum for the heirs-at-law of Albino Santos, deceased; Ana Santos, as Administratrix of the Estate of Albino Santos, deceased; and Ana Santos, Individually, and defendant Standard Havens, Inc.
(Standard Havens), pursuant to leave granted by this court, appeal from a summary judgment of the Law Division entered in favor of defendant Riverdale Quarry Co. (Riverdale) in this action seeking to recover damages as a result of the wrongful death of her husband, Albino Santos (decedent).
The record submitted on appeal establishes that Riverdale, a wholly-owned subsidiary of Hess Brothers, Inc. (Hess Brothers), is engaged in the business of producing crushed stone and asphalt products at its Riverdale, New Jersey plant. Hess Brothers is an engineering and contracting firm, specializing in highway construction and heavy industrial site work and is a member of the Associated General Contractors of New Jersey. Pursuant to a collective bargaining agreement, Hess Brothers obtained its labor force exclusively through the Laborers' International Union of North America, Heavy and General Laborers' Locals 472 and 172, while Riverdale, also a union shop, obtained its labor force from Local 734 (general laborers, heavy equipment operators) and Local 560 (teamsters union for truck operators).
Notwithstanding the fact that Riverdale and Hess Brothers each drew its labor force from different unions, Hess Brothers' employees regularly performed maintenance and other work for Riverdale at it Riverdale, New Jersey plant. Ronald H. Hess (Hess), Vice-President and Operations Manager of Riverdale, would contact Dick Winters, Hess Brothers' general supervisor, on a regular annual basis and arrange for Hess Brothers' foreman Manuel Silva (Silva) and his crew to work at Riverdale while the plant was closed for winter maintenance. Prior to the winter of 1984, Silva and his crew had been engaged to dismantle various aspects of the Riverdale plant and to construct an office.
According to Hess, instead of transferring the Hess Brothers' employees to Riverdale's payroll, the parties followed an established procedure whereby Hess Brothers would pay Silva and his laborers their union wages and then "backcharge"
Riverdale through invoices. The crew was kept on the Hess Brothers' payroll because it was "easier to work the paperwork." Since the men received their paychecks directly from Hess Brothers, Hess Brothers was responsible for withholding all necessary taxes and Union contributions. Invoices were then periodically sent to Riverdale in accordance with work hours recorded on Hess Brothers "Daily Time Reports." An invoice sent by Hess Brothers to Riverdale for the period from February 6 through 10, 1984, indicates that decedent was credited with 40 working hours for this period and that Riverdale was billed accordingly at an hourly rate of $23.38. A breakdown of this hourly rate subsequently provided to Riverdale by Phyllis Howell, Hess Brothers' office manager, indicates an allocation of $11.80 for decedent's hourly wages, $4.48 for insurance and taxes, $3.05 for union welfare and pension contributions, and $4.05 for "overhead".
In 1977, Riverdale purchased a large pollution control structure which captures and controls dust generated in the production of asphalt, commonly referred to as a "baghouse." The structure was purchased from Standard Havens, a manufacturer and distributor of heavy machinery. In or around January 1984, Riverdale decided to replace this structure with another model. Accordingly, arrangements were made for Hess Brothers' foreman Silva and his crew to begin dismantling the baghouse during the first week of February, 1984. The Hess Brothers' crew consisted of laborers Jose Valente and decedent. The daily time sheets and invoices show that Silva, Valente and decedent had also performed a number of other maintenance tasks at Riverdale from January 2 through 27, 1984.
As a matter of routine procedure, Hess delegated supervisory responsibility over the dismantling of the baghouse to Forrest (Bucky) Rodda, the Riverdale asphalt plant manager. Although the proofs show that both Hess and Rodda intermittently checked on the progress of Silva and his crew, as they had done in the past, it was Rodda who actually told Silva what needed to be done and it was Rodda to whom Silva would go if extra
manpower was required. While Silva and his crew would generally work by themselves, Rodda would come to their assistance if, for example, a crane operator was needed. Silva, however, did not have the authority to directly order Rodda's men to work for him. At the commencement of the job, Silva was given a set of blueprints to follow in dismantling the baghouse. Although neither Hess nor Rodda gave Silva or his crew any particular instructions ...