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Silva v. Paving

March 5, 2008

CARLOS SILVA AND SILVIA SALES, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
RIGHT WAY PAVING, BILL PETERSON AND THOMAS MC GILL, DEFENDANTS-RESPONDENTS.
ARI COMPANIES, PLAINTIFF-RESPONDENT,
v.
CARLOS SILVA AND SILVIA SALES, HIS WIFE, DEFENDANTS-APPELLANTS, AND RIGHT WAY PAVING, BILL PETERSON AND THOMAS MC GILL, DEFENDANTS-RESPONDENTS.
PROFORMANCE INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
CARLOS SILVA AND SILVIA SALES, HIS WIFE, DEFENDANTS-APPELLANTS, AND RIGHT WAY PAVING, BILL PETERSON AND THOMAS MC GILL, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7989-04, L-5867-05 and L-1750-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2008

Before Judges Stern, Collester and C.L. Miniman.

Carlos Silva (plaintiff in the personal injury action),*fn1 appeals from an order, entered on March 2, 2007, denying his motion for reconsideration of an order entered on January 5, 2007,*fn2 granting summary judgment to ARI Insurance Company and Proformance Insurance Company in this consolidated matter, including the declaratory judgment action. The January order declares that Proformance owes no "defense or indemnification obligation" to Thomas McGill. It does not expressly, or otherwise, grant summary judgment to ARI Insurance Company, or declare that ARI has no obligation to defend or indemnify its insured, Bill Peterson, but the motion judge's letter opinion and the motion for reconsideration made that clear.

The Law Division found that Silva was an employee of Right Way Paving (and that Right Way Paving was a partnership composed of Peterson and McGill), and dismissed the complaint against them because of the workers' compensation bar to common law actions. It rejected the contention that Silva was either an "independent contractor" or "casual employee," and concluded, by reference to Sloan v. Luyando, 305 N.J. Super. 140 (App. Div. 1997), that under "both the 'control test' and the 'relative nature of the work test,' . . . Mr. Silva was an employee of Right Way Paving." In their briefs before us, the carriers seek to uphold the judgment, and assert there is no coverage under their automobile policies with respect to injuries to their insureds' "employees." On the motion for reconsideration the judge developed her holding that Silva was employed by both McGill and Peterson as partners, and rejected the contention there was an issue of material fact as to that question:

The argument that is being made that these two individuals were not partners, did not act "in concert" with one another with regard to this particular incident, everything that has been presented to this Court says differently.

You, at any point in time, read through the various transcripts of Mr. McGill and Mr. Peterson, and they both agree that they were partners. That they acted together, if not on this particular job site, on other job sites. . . .

. . . That Right Way Paving was something that they did together and that they split in the profits. What more you need to show that they, in their minds, and in their conduct, were operating as a partnership, I don't know.

I looked at the statute N.J.S.A. 42:1[A]-10, which defines what a partnership can be, and it says it's an association of two or more persons to carry on as co-owners of business for profit that is formed --they form a partnership whether or not the persons intended to form a partnership.

That's what the statute in fact says. And then it says, in determining whether or not a partnership is formed, the Court is directed to look to all the surrounding circumstances and the intent of the parties and their conduct. Everything in the depositions that these two gentlemen said complies with how the Court is directed to look at them.

Their intent, they say specifically, we acted together as partners. Their conduct, one had one part of the equipment needed to conduct the business, and the other had another part of the equipment to conduct the business, and without both pieces there was no business to be conducted. They said it, one had the paver, one had the truck, one had the trailer. They said it, when anyone had a job, we would contact the other one if he didn't have a job, and we would bring everybody together and we would work that job. That's the way we did it.

Everything that has been presented to m[e] on behalf of Mr. Peterson, on behalf of Mr. McGill, on behalf of Mr. Silva, indicates that Mr. Silva worked for Peterson, McGill and on that day and time, Peterson, McGill were operating under what they call Right Way Paving, and it's as simple as that.

Silva contends that "the trial court erred in granting summary judgment in favor of ARI and Proformance and holding applicable their respective employee policy exclusions," and that "the trial court erred in deciding as a matter of law a ...


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