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Sloan v. Luyando

October 7, 1997

SCOTT SLOAN, PLAINTIFF-APPELLANT,
v.
ADLAI E. LUYANDO, NANCY H. LUYANDO, JOHN T. FEOLA, SANDY A. FEOLA, JOHN DOE 1-10, (CORPORATIONS BEING FICTITIOUS AND PRESENTLY UNKNOWN), DEFENDANTS-RESPONDENTS.



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

Approved for Publication October 7, 1997.

Before Judges Shebell, A.a. Rodriguez and Coburn. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

This is an appeal by plaintiff, Scott M. Sloan, from the Law Division's dismissal on summary judgment of his civil action against defendants, John T. Feola and Sandy A. Feola, based on the determination that plaintiff's exclusive remedy was under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. We affirm.

I

Plaintiff was injured in an automobile accident on December 10, 1992, while riding as a passenger in the front seat of a pick-up truck driven by John Feola, the sole proprietor of Notchwood Construction (Notchwood). The leased truck was registered in the name of John's father, Sandy Feola. Sloan was accompanying Feola to a warehouse to pick up a refrigerator needed for a renovation job being performed by Notchwood, when the truck rear-ended an automobile driven by defendant, Adlai E. Luyando, and owned by defendant, Nancy H. Luyando, as the two vehicles proceeded westbound on Route 3.

The next day, Sloan visited a doctor and filled out a "Patient Information Sheet," listing "Notchwood Construction" as his employer, and Notchwood's phone number for his business phone. Sloan listed "carpenter" as his occupation and made no reference on this form to "S.M.S. Carpentry" (S.M.S.), a trade name he adopted in 1983 and registered in 1991 or 1992. He also marked "Y" next to questions on the form asking: "Is injury work related?" and "Has employer been notified?"

On September 9, 1994, a law firm filed a Workers' Compensation claim against Notchwood on Sloan's behalf. In November 1994, Sloan consulted his current attorneys and it was decided that the facts supported a civil suit rather than a Workers' Compensation claim. Therefore, a complaint was filed on December 9, 1994, naming as defendants the Feolas and the Luyandos, without mention of Notchwood or S.M.S.

Sloan provided certified answers to Form A Interrogatories propounded by defense counsel. Question number 10 of the Interrogatories asked: "If employed at the time of the accident, state: (a) name and address of employer; (b) position held and nature of work performed; (c) average weekly wages for past year; (d) period of time lost from employment, giving dates; and (e) amount of wages lost, if any." Sloan's answer was: "Plaintiff employed as a laborer for Notchwood Construction Company, 33 Notch Park Road, Little Falls, NJ 07424, weekly gross salary is $720.00. If any claim for lost wages - same will be supplied." There is no mention in Sloan's interrogatory answers of his "independent contractor" status, and again no mention of "S.M.S. Carpentry." During Sloan's deposition, his attorney abandoned the lost income claim.

On June 21, 1996, the Feolas filed a motion for summary judgment, claiming that Sloan was a Notchwood employee and his recovery therefore must be limited to Workers' Compensation benefits. This defense was not raised in the answer to plaintiff's complaint filed by the Feolas, although remarkably it does appear as an affirmative defense in the Luyandos' answer. The Luyandos filed a motion for summary judgment claiming that, having been struck in the rear, they were without fault. Sloan also moved for partial summary judgment on the grounds that his injuries were caused in a rear-end type accident. On July 10, 1996, before the return date of the motions, Sloan's deposition was taken.

By way of certification in support of his motion for summary judgment, John Feola stated that he employed Sloan, determined what jobs Sloan would work on, when each job would begin and end, and that he transported Sloan to and from work each day. Feola claimed that he bid on every job that Sloan worked on for Notchwood, and that Sloan never directed any work to be accomplished on a Notchwood job. Feola maintained that only Notchwood supplied materials for the jobs Sloan worked on. Sloan's attorney filed a certification in opposition to the summary judgment motion, stating that "it is very apparent that there was no 'employment' relationship entered into by plaintiff and defendant Feola..." The certification gave no factual support for this Conclusion.

On the return date of the motions, transcripts of Sloan's deposition testimony had not been received. Sloan's attorney advised the motion Judge of the recent deposition and requested that the motion be carried so that the deposition could be considered as plaintiff's counsel represented he had not received the transcript. The court denied the request, stating that the court is "obligated to decide the motion solely on the competent evidentiary materials submitted at ... [the time of the hearing], not upon the representations of counsel as to the existence of other documentation that has not been provided to the Court, nor alluded to in the responding papers of plaintiff." The Judge granted summary judgment in favor of the defendants and dismissed Sloan's complaint with prejudice, stating:

a review of ... [Sloan's] evidentiary materials provides, in the Court's mind, nothing other than a bare assertion that Sloan was an independent contractor. There is no competent material submitted in the cross-motion or in opposition to the motion for summary judgment to factually establish the existence of an independent contractor relationship, as the same has been defined by case law in the State of New Jersey. There are no competent facts submitted by certification or otherwise to raise an issue as to the existence of an independent contractor relationship...the mere unsubstantiated representation of the existence of...an ...


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