On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-3124-99.
Before Judges Coburn, Wells and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff and his wife commenced this action, alleging a workplace injury. The trial judge granted both the summary judgment motion of defendant Ideal Tile Importing Co., Inc., finding plaintiff to be Ideal's employee and his claim barred by N.J.S.A. 34:15-8, and the summary judgment motion of defendant Komatsu Forklift, U.S.A., Inc., holding that claim preempted by federal law. We affirm.
Plaintiff claimed he was injured at his workplace when struck by one forklift and pinned against another. Ideal moved for summary judgment, asserting that plaintiff was an employee and his claim precluded by N.J.S.A. 34:15-8, which generally renders an employee's workers' compensation claim the sole remedy against the employer. Wellenheider v. Rader, 49 N.J. 1, 9 (1967).
On February 1, 2001, the first judge assigned to the matter rendered an oral decision which unequivocally indicated that Ideal's motion for summary judgment would be denied in order to allow the parties to explore in discovery the fact disputes surrounding plaintiff's relationship with Ideal. Notwithstanding that ruling, the judge entered three orders -- one which denied Ideal's motion and allowed the parties to seek discovery on the employment issues, a second which granted Ideal's summary judgment motion, and the third, entered on February 16, 2001, which stated that plaintiff was not an employee of Ideal. Further confusion was generated a year later when Ideal moved again for summary judgment and sought reconsideration of the February 16, 2001 order. On March 22, 2002, the judge entered an order which granted reconsideration of the February 16, 2001 order without adequately explaining how the order was reconsidered or revised.
The case was later assigned to Judge Thomas W. Cavanagh, Jr. Ideal again moved for reconsideration and summary judgment. Judge Cavanagh granted both motions for reasons set forth in his December 17, 2002 oral decision. Plaintiff argues on appeal that reconsideration of the February 16, 2001 order was barred by the"law of the case" doctrine and, in any event, summary judgment was mistakenly entered in favor of Ideal. We disagree with both contentions.
Unquestionably, the prior orders were interlocutory because they did not resolve, either individually or collectively, all issues as to all parties. As a result, those orders remained"subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." R. 4:42-2.*fn1 While the discretion to revisit an interlocutory order requires consideration of the law of the case doctrine, plaintiff's contentions appear to rest on the mistaken impression that this doctrine represents an absolute rule. While the law of the case doctrine reflects an important judicial policy that"once an issue is litigated and decided in a suit, relitigation of that issue should be avoided if possible," it is nevertheless a discretionary guideline. Sisler v. Gannett Co., Inc., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). The respect and deference which should be given to prior rulings in the same case"must be balanced against other considerations, particularly the impact of new law or new facts," Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 302 (App. Div. 2004), or, we would add, where the confusing nature of the prior decisions requires clarification. In short, the law of the case doctrine does not obligate a judge to slavishly follow an erroneous or uncertain interlocutory ruling. See Cineas v. Mammone, 270 N.J. Super. 200, 207 (App. Div. 1994); McBride v. Minstar, Inc., 283 N.J. Super. 471, 481 (Law Div. 1994), aff'd o.b., 283 N.J. Super. 422 (App. Div.), certif. denied, 143 N.J. 319 (1995).
In addition, Ideal correctly argues that an order denying summary judgment is not subject to the law of the case doctrine because it decides nothing and merely reserves issues for future disposition. See Franklin Med. Assocs. v. Newark Pub. Schools, 362 N.J. Super. 494, 512 (App. Div. 2003); Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div. 1998); A&P Sheet Metal Co., Inc. v. Edward Hansen, Inc., 140 N.J. Super. 566, 573 (Law Div. 1976). Accordingly, we reject plaintiff's contention that the first judge's orders regarding plaintiff's relationship to Ideal precluded Judge Cavanagh's consideration of Ideal's last motion for summary judgment.
We also subscribe to Judge Cavanagh's ruling that Ideal was plaintiff's employer and, thus, insulated from suit by N.J.S.A. 34:15-8, even though plaintiff was also an employee of EMI, which entered into a leasing agreement with Ideal. The undisputed facts presented by Ideal's summary judgment motion revealed that (1) plaintiff's work relationship was with Ideal only; (2) the work plaintiff performed was for Ideal's benefit; (3) plaintiff never received instructions from anyone other than Ideal representatives; (4) Ideal was the source of plaintiff's wages; and (5) Ideal had the power to hire and fire plaintiff. Judge Cavanagh correctly applied these undisputed facts to the legal principles contained in Volb v. G.E. Capital Corp., 139 N.J. 110, 116 (1995) and Kelly v. Geriatric and Med. Serv., Inc., 287 N.J. Super. 567, 573 (App. Div.), aff'd, 147 N.J. 42 (1996), in finding that plaintiff was an Ideal employee. We affirm substantially for the reasons set forth in his thorough and well-reasoned oral decision of December 17, 2002.
In considering Komatsu's motion for summary judgment, Judge Cavanagh correctly observed that plaintiff's only response to Komatsu's forty-two paragraph statement of undisputed facts was his counsel's one-page conclusory and unsworn letter which stated, in its entirety:
The plaintiff takes exception with the defendant's list of undisputed facts in its entirety. The only undisputed fact that plaintiff believes is relevant here is that the plaintiff was severely injured as the result of the defendant's failure to design a lift truck with back-up warning devices and also its failure to communicate the availability of such devices to the end user.
With respect to the qualifications of plaintiff's expert, Mr. Niles expertly withstood two full days of grilling by defendant's attorney. Mr. Niles['s] creden tials as a safety expert have been accepted in the many ...