On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-180-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically on October 23, 2008
Before Judges Fisher and Baxter.
Plaintiff, Patricia Wilson, appeals from a November 16, 2007 order granting summary judgment to defendant, Synagro Technologies, Inc., Synagro-WCWNJ, Inc., (Synagro), thereby dismissing her personal injury complaint. The Law Division ruled that as a matter of law plaintiff was a "special employee" of Synagro and, therefore, was precluded from instituting suit against her "special employer" by virtue of N.J.S.A. 34:15-8. We affirm.
On January 19, 2004, plaintiff was injured when she slipped and fell on ice while crossing the parking lot to enter Synagro's place of business. At the time, plaintiff was employed by an employment agency, Uptown Personnel, which had placed plaintiff with Synagro as a temporary employee. As a result of the injuries plaintiff sustained when she fell, she was absent from work at Synagro for several hours three times each week to attend doctors' appointments. Those absences caused her supervisor Linwood Bubar, to complain to Uptown that plaintiff's frequent absences were interfering with her responsibilities of answering the phone and handling accounts receivables.
Bubar scheduled a meeting with plaintiff and a representative of Uptown, which ended with an agreement that Uptown would remove plaintiff and replace her with someone else. Plaintiff testified at her deposition that Uptown agreed to remove her from Synagro's premises to "keep their customer [Synagro] happy." Plaintiff's claim for workers' compensation benefits was paid by Uptown without any contribution from Synagro.
On March 28, 2007, plaintiff filed a complaint in the Law Division against Synagro, alleging that on January 19, 2004, while "in the course of her employment with Uptown Personnel and doing business on the premises of Synagro Technologies, Inc., Synagro-WCWNJ," she "f[e]ll as a result of . . . Synagro['s] . . . failure to . . . keep [its] premises free and clear of ice and/or snow . . . ." After completion of discovery, Synagro moved for summary judgment, arguing that plaintiff was a "special employee" of Synagro and therefore her workers' compensation recovery against one employer, Uptown, prevented her from maintaining a tort action against the other, namely Synagro, for the same injury.
On November 16, 2007, in a written opinion, Judge Hogan held that plaintiff was a "special employee" of Synagro, and therefore, Synagro was "entitled to invoke the exclusive remedy provision of the Workers' Compensation Act to bar plaintiff from seeking damages for her injury arising from her January 2004 accident." He entered an order granting summary judgment in favor of Synagro and dismissed plaintiff's complaint.
On appeal, we apply the same standard as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This requires a review of the competent evidential materials in the light most favorable to the non-moving party to determine whether a rational fact-finder could resolve the issue in favor of the non-moving party. Ibid.
The Workers' Compensation Act (Act) provides an employee with an "exclusive remedy" against the employer for injuries arising out of and in the course of employment. N.J.S.A. 34:15- 8. "In exchange for receiving workers' compensation benefits, which are awarded without regard to fault, the employee surrenders common law tort remedies against his or her employer . . . except for intentional wrongs." Walrond v. County of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006). As we observed in Walrond, our courts "have developed a doctrine that recognizes that under workers' compensation, an employee can 'have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from making a tort action against the other for the same injury.'" Ibid. (quoting Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)). The "special employee" doctrine developed largely from situations where a temporary ...