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Pacenti v. Hoffman-La Roche Inc.

Decided: January 8, 1991.

EDWARD J. PACENTI AND PHYLLIS PACENTI, PLAINTIFFS-APPELLANTS,
v.
HOFFMAN-LA ROCHE, INC., THE JOHANSEN COMPANY, FISHBACH CORP., JOHN DOE AND RICHARD DOE, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Warren County.

J.h. Coleman and Dreier. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiff appeals by leave granted from summary judgment entered in favor of defendant Hoffman-LaRoche, Inc. Plaintiff asserts that Hoffman-LaRoche is liable to him in negligence for slip and fall injuries while he was working in the employ of codefendant The Johansen Company. Hoffman-LaRoche contends that plaintiff also was a "special employee" of Hoffman-LaRoche, having worked there as a millwright for over five years.

Plaintiff's working arrangement was unusual in that he was a direct employee of the Johansen Company, which in turn had a contract with Hoffman-LaRoche to supply maintenance personnel. This contract specifically provided that the personnel were not direct employees of Hoffman-LaRoche. The trial judge, however, applied the common-law tests of employment

and found that plaintiff was a special employee in that the Hoffman-LaRoche maintenance foreman controlled plaintiff's day-to-day work performance and had the power to fire him. In arriving at this conclusion, the judge accepted plaintiff's deposition testimony over his contrary later certification, and then applied the standards set forth in Santos v. Standard Havens Inc., 225 N.J. Super. 16, 541 A.2d 708 (App.Div.1988).

In his deposition, plaintiff is clear that over a five-year period he received his daily work assignments from the Hoffman-LaRoche foreman, Larry Ehasz. While plaintiff and the other Johansen employees had their own area within the maintenance department where they would gather and keep their tools, each day they would meet with the millwrights employed directly by Hoffman-LaRoche to receive their work assignments from Mr. Ehasz. Usually the work assignments would be in writing, but sometimes they would be oral, and plaintiff would be told to work first on one job and then on another within the Hoffman-LaRoche facility. All the equipment on which plaintiff worked was that which was used in the Hoffman-LaRoche manufacturing process. The Hoffman-LaRoche foreman prepared plaintiff's time sheets, which plaintiff would then submit to Johansen in order to be paid.

Plaintiff filed a contrary certification in opposition to the summary judgment motion. In that certification he stated that his "immediate boss and supervisor of the job was Burt Schurm," a Johansen employee who "solicitated jobs from Hoffman-LaRoche and could dictate the work." In this certification he further stated that

Hoffman-LaRoche had no control of me and could not fire me . . . only Johansen could pull me off the job and send me elsewhere. Hoffman-LaRoche never dictated to me how to do the job, but just provided Johansen employees with orders that had to be accomplished.

The line between an independent contractor and a special employee is a fine one. It has been explored not only in the Santos case, supra, but also recently in Murin v. Frapaul Constr. Co., 240 N.J. Super. 600, 573 A.2d 989 (App.Div.1990),

and Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 551 A.2d 1006 (App.Div.1988), certif. den. 115 N.J. 59, 556 A.2d 1206 (1989). The analyses in these cases all start with Professor Larson's three-part test to determine whether the employee is a special employee or an independent contractor. See 1C Larson Workmens' Compensation (1986), ยง 48.00 p. 8-405, quoted in Murin, 240 N.J. Super. at 607, 573 A.2d 989, and in Antheunisse, 229 N.J. Super. at 402-403, 551 A.2d 1006. Similar standards were applied in Santos, except that the court in Santos did not require the employee to have made "a contract of hire, express or implied, with the special employer," the first of the Larson criteria. This criterion was deemed satisfied in Antheunisse where the plaintiff was an employee of a temporary personnel agency, placed in defendant's packing department during the Christmas season. The employee had been hired by and was paid solely by the direct employer. The court found, however, that the "contract" element could be satisfied by the employee's implied acceptance of the day-to-day control and management by the special employer, i.e.,

when she reported voluntarily to work, complied with store policies and accepted the training and guidance provided by defendant . . . aware that she would be terminated from her employment if she failed to submit to defendant's ...


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