On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Number L-9809-99.
Before Judges Havey, Wells and Payne.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff James Harris is an employee of Burnham Services Company, Inc., a certified interstate motor carrier. Pursuant to federal regulations, Burnham leased a tractor from defendant Larry Mitchell, d/b/a Mitchell Trucking. Plaintiff was injured while loading a trailer attached to Mitchell's tractor when Mitchell's employee, defendant David Smith, suddenly moved the tractor, causing plaintiff to fall.
Mitchell, as a contractor-lessor of the tractor, is deemed a "statutory" employee of Burnham. See 49 U.S.C.A. § 1401(a)(4) and 49 C.F.R. § 376.12(c)(1); see also Cox v. Bond Transp., Inc., 53 N.J. 186, 201 (1969). The trial court held that since, under federal law, Mitchell was an "employee" of Burnham, plaintiff is barred from instituting a third-party action against Mitchell and his employee. The court therefore granted summary judgment in favor of Mitchell and Smith. We reverse. We hold that the federal statute and regulation were not intended to foreclose a carrier's employee from recovering against the contractor-lessor and his employee under state law.
Plaintiff was employed by Burnham as a warehouseman and truck driver at Burnham's Edison facility. Burnham is an interstate motor carrier in the business of hauling freight, and owns and stores trailers at its facility for that purpose.
Mitchell was the owner of a tractor used to haul trailers on behalf of interstate carriers. Burnham leased a Mitchell tractor pursuant to a July 7, 1992 agreement, the terms of which were subject to regulations promulgated by the Interstate Commerce Commission (ICC). The pertinent sections of the lease agreement provide:
WHEREAS, the CONTRACTOR [Mitchell] is the owner of a motor truck or trucks, more completely described in the Certificate of Lease, attached hereto and made a part of this Agreement by specific reference thereto; and
WHEREAS, the CARRIER [Burnham] is a motor carrier engaged in the transportation of goods, wares and merchandise for him in the Continental United States, as prescribed by the Interstate Commerce Commission under Certificate IMC-682, in Ex Parte MC-19, and maintains its home office in Columbus, Georgia and the parties recognize that the form of this Agreement is governed by Part 1057 of the Motor Carrier Regulations of the Interstate Commerce Commission. Therefore, in order to meet the requirements thereof, and for no other purpose, it is agreed that said Equipment shall, during the term hereof, be for the exclusive possession, control and use of CARRIER. However, nothing herein shall be construed as vesting in CARRIER any control or right of control over the leased Equipment or drivers thereof beyond that which is incidental to compliance with the rules and regulations of the aforementioned regulatory bodies. CARRIER shall have no right under this Agreement or otherwise to control the manner, means and methods utilized by any driver of the leased Equipment for the accomplishment of the results of this Agreement.
WHEREAS, the CARRIER wishes to lease said vehicle from CONTRACTOR and assumes responsibility for the Equipment so leased for the period of the lease to the extent required and by and in accordance with the provisions of all applicable Interstate Commerce Commission rules and regulations and state Public Service and Utility Commission.
On August 3, 1998, plaintiff was loading a trailer hitched to Mitchell's tractor. At the time, Burnham's "decal" and ICC identification number were displayed on the tractor, as required by ICC regulations. Plaintiff was injured when Mitchell's employee, defendant David Smith, unexpectedly moved the trailer in a forward direction. Plaintiff recovered workers' compensation benefits from Burnham and filed a third- party personal injury action against Mitchell and Smith.
In granting summary judgment to defendants, the trial court reasoned that the federal statute and regulation governing the relationship between interstate carriers and contractor-lessors "pre-empted state law." The court implicitly concluded that Mitchell's "statutory" employment with Burnham made him a co-employee of plaintiff, thus barring plaintiff's suit under N.J.S.A. 34:15-8.
The existence of an employee's right to receive workers' compensation benefits from his or her employer does not operate as a bar to the employee's right to sue a third party for damages arising from injuries suffered in a work-related accident. N.J.S.A. 34:15-40. However, under N.J.S.A. 34:15- 8, the employee is barred from filing a third-party action against a co-employee. See also McIntosh v. DeFillippo, 281 N.J. Super. 171, 176 (App. Div. 1995). The issue raised by this appeal is whether the "statutory" employee status of Mitchell created by federal law makes Mitchell plaintiff's co- ...