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Rader v. Omni Financial Services


October 29, 2009


On appeal from the State of New Jersey Department of Labor, Division of Workers' Compensation, CP 2002-38893.

Per curiam.


Argued November 10, 2008

Before Judges Carchman, R. B. Coleman and Simonelli.

Appellant Continental Casualty Company (CNA) appeals and Omni Financial Services, Inc., t/a OmniStaff (Omni) cross-appeals from two orders of the Division of Workers' Compensation entered on August 30, 2007. One of the orders determined that petitioner Matthew Rader was jointly employed by Quality Medical Transport, Inc. (QMT) and Omni, and Omni's affiliates, subsidiaries and related entities. That order further determined that Omni and its affiliates, subsidiaries and related entities were insured by CNA and that CNA was liable for payment of medical and disability benefits to Rader and for attorneys' fees and costs incurred by Rader and QMT.*fn1 The second order dismissed claims asserted against the State of New Jersey Uninsured Employers Fund. For the reasons that follow, we affirm both orders, except that we remand for a modification of the first order to delete references to Omni's affiliates, subsidiaries and related entities.

This matter arises from a workers' compensation claim petition filed by Matthew Rader, who was injured on May 2, 2002, when he fell down three flights of stairs while performing his job as an emergency medical technician (EMT) in the employ of QMT. No one denies that this was a compensable injury. The question before us, however, is whether the judge of compensation correctly found that Omni was QMT's professional employment organization (PEO), pursuant to N.J.S.A. 34:8-67 to -79, at the time of Rader's injury and, thus, a co-employer.*fn2

All parties agree that Rader was employed by QMT at the time of his injuries. CNA and Omni both acknowledge further that Omni was a PEO for QMT in 2001 when Rader's employment with QMT commenced, however, both contend that Omni was not the PEO at the time of Rader's injury. Instead, they contend that American Labor Force (ALF), an affiliate or subsidiary of Omni, was QMT's PEO at that time. Significantly, neither QMT nor ALF maintained workers' compensation insurance at that time.

Rader's relevant employment history began on September 2, 2001, when he completed a W-4 form listing "Omni Financial Services" as his employer. At the same time, he submitted his application for employment with "OmniStaff," located at Woodland Falls Corporate Park, Suite 110, 200 East Lake Drive, Cherry Hill. That same day, he signed a form entitled "Quality Medical Transport, Inc. Policy and Procedures." Rader was subsequently assigned as an EMT in the employ of QMT. Omni undertook, at least initially, to manage QMT's payroll, to withhold taxes, and to provide workers' compensation insurance for QMT's employees.*fn3

Salvatore Murante, the Operations Manager for QMT processed Rader's application for a position with Omni. He testified that he explained to Rader that he would be employed by Omni and leased back to QMT, and that Omni would mail employee paychecks to QMT for distribution.

Anne Mazzei was the president of QMT. She testified that she was also an employee of Omni, as were all of QMT's employees. At the time of her testimony in July 2006, Mazzei was employed by T. Jax, but in 2002, she was an employee of Omni. Over the years, the name of the companies kept changing. They included Omni, America's Labor Force and Cura Group. According to Mazzei, QMT would pay the Omni Group every week, and the Omni Group was to obtain workers' compensation coverage for the employees. As she recalled, the employees' paychecks would come from Omni, but QMT was listed at the top of the paycheck stubs.

Ms. Mazzei's husband, Richard, co-founded QMT, with her. Mr. Mazzei negotiated the service agreement between QMT and Omni. He explained his objective and rationale as follows:

A. We were negotiating for Omni Staff to take over our employee responsibilities and also to supply us with Workers' Compensation insurance, and the reason for that was simply that we were led to believe that going through any company like Omni Staff, we would get a better rate on the Workers' Compensation premium, simply because they were able to go to the Workers' Compensation carrier and say we have X amount of people, maybe 5,000, or 10,000 or 2,000 as opposed to the 80 or 100 or so that worked for us, and thereby, getting a much better rate. In addition to that, the other benefit was that if you deal directly with a Workers' Compensation carrier, they want a very substantial money -- amount of money up front and then at the end of the year they come in for an audit and they want an additional substantial amount of money.

Using this type of a program, which has become commonplace, you have the benefit of paying exactly what you owe weekly, so, it's a pay as you go thing, and there's no audit at the end of the year. So, these were very desirable concepts and that's why we were interested in it.

According to Mr. Mazzei, their negotiations resulted in an agreement, which was reflected in one of the proposed service agreements identified for the record. He testified, however, that he was not able to locate a signed copy of the agreement. He recounted that QMT paid OmniStaff for workers' compensation insurance, and they were given standard certificates of insurance as proof of insurance. From the start of its relationship with the Omni Group until 2004, QMT continually made payments for workers' compensation insurance, and at all times, Mr. Mazzei believed that the Omni companies were obtaining such insurance for QMT's employees.

It is not disputed that prior to and on the date of Rader's compensable accident, May 2, 2002, Omni had obtained a workers' compensation policy from CNA. That policy, issued on September 19, 2001, covered a policy period of August 11, 2001 to August 11, 2002. QMT was not a named Insured under that policy, and although Omni and ALF had common ownership and shared the same address, the only Insured under the policy CNA issued was Omni. CNA stresses that neither QMT nor ALF is a named Insured, and there are no endorsements naming either QMT or ALF as an Additional Insured.

Mazzei reported Rader's accident on a form bearing a caption "America's PEO and OmniStaff Incident Investigation Form[.]" Richard Mazzei testified that he forwarded the incident investigation form to Omni for handling.

On December 9, 2002, Rader filed a claim petition with the Division of Workers' Compensation naming QMT as the respondent. There is no indication that CNA was involved in the filing of an answer on behalf of QMT or Omni in connection with that claim petition. Instead, Robert Smolen, Esq. of the law firm Swartz & Campbell, appeared on behalf of QMT and in due course an order of settlement was approved, with America's PEO paying the agreed benefits to Rader.*fn4

Thereafter, as the effects of Rader's back injury worsened and required surgery, Rader applied for a modification of the settlement; and on September 29, 2005, an order directing QMT to provide further medical treatment was entered. QMT stated in its answer to that application that it did not know the name of its insurance carrier. Accordingly, on February 9, 2006, the Division joined the State of New Jersey Uninsured Employers Fund as a party respondent in the event QMT was found to be without insurance. For its part, Omni answered Rader's application for modification of formal award by denying that Rader was its employee.

At Rader's behest, CNA was directed to provide discovery as to proceedings that transpired between itself and Omni in a civil action for fraud filed by CNA, in June 2003, in Superior Court against Omni and its principals. In that action, CNA alleged that Omni had deliberately understated the number of its employees to be covered under CNA policies. More particularly, CNA alleged that Omni and its principals had "knowingly or purposefully made a false or misleading statement, representation or submission, including a misclassification of employees or engaged in a deceptive leasing practice for the purpose of evading the full payment of premiums pursuant to N.J.S.A. 34:15-1 et seq." The parties eventually resolved that matter by entering into a Consent Judgment Concluding Case that incorporated by reference a Confidential Settlement Agreement. That agreement recited, in relevant part, that "During the course of the Suit, the Parties engaged in discussions which included, inter-alia, workers compensation and employers liability claims which Omni and affiliated entities, including but not limited to American Labor Force, Inc. had not reported to Continental and which Omni had managed and paid."*fn5

Petitioner's claim was one of the claims managed and paid by Omni.

In accordance with a scheduling order, the judge of compensation heard testimony from numerous witnesses over several days between May 25, 2006 and July 31, 2007. Based on the proofs presented, the judge issued a decision from the bench holding, that Omni was QMT's PEO on May 2, 2002, and that Omni's insurer, CNA, was responsible for payment of petitioner's claim. On October 17, 2007, the judge gave a supplemental bench decision to clarify and further elaborate on his conclusions in the August 30, 2007 bench decision. Among the findings made by the judge of compensation are the following:

(2) I conclude from exhibits R-2, R-3 and R-4 and from the unrefuted testimony of Mr. and Mrs. Mazzei and Mr. Rader that Omni Staff was interrelated with Omni Financial, and that Omni Financial paid the wages of QMT to QMT employees which included petitioner. Omni had also hired the petitioner and had sent him to work for QMT.

(3) Omni Staff and Omni Financial both show their places of business at 200 Lake Drive East Cherry Hill, New Jersey. I note that there were several other companies listed at that address[,] notably American Labor Force and America's PEO and the Cura Group. All of these companies were owned and operated by Thomas Cunningham, Neal Snyder and Adriene Hopkins and these individuals are listed as corporate officers of these companies. None of them appeared in court to refute any of these claims. The fact that Mr. Rader was required to file accident claims with them and the fact that he received his wages from them is confirmed by Rader's and the Mazzei's testimony as well as numerous documents in evidence which are conclusive about this point.

Based on these and other findings, the court entered the orders from which the appeal and cross-appeal are taken.

On its appeal, CNA argues that the workers' compensation court erred in various respects: by concluding that CNA insured not just Omni, but also affiliated corporations that are not insureds; by ignoring the PEO statute, N.J.S.A. 34:8-67; by concluding that on May 2, 2002, Rader was jointly employed by multiple corporate entities, including Omni; by concluding that perceived fraud by Omni could expand insurance coverage; by misevaluating the repeated and documented admissions of Omni that on May 2, 2002, petitioner was not its employee but that of American Labor Force; and by finding coverage for QMT's employee, Matthew Rader, in the absence of any "LCF" [labor contractor for] endorsement or policy naming QMT as an Insured.

On its cross-appeal, Omni echoes CNA's arguments and also argued that the court below committed a reversible error of law when it disregarded the distinctive nature of separate professional employer organizations.

QMT argues in response that Omni agreed to act as its PEO and, as such, Omni is a co-employer of Rader. It asserts that CNA is estopped from denying coverage by reason of its defense of Omni. Rader argues the court correctly ruled that he was jointly employed by QMT and Omni and that CNA is estopped from denying coverage.

Ordinarily, the scope of appellate review in a workers' compensation case is the same as "that on an appeal in any non-jury case[.]" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). See also State v. Johnson, 42 N.J. 146 (1964). Our conclusions are limited to "whether the findings [of the judge of compensation] could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close, supra, 44 N.J. at 599). See also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004). "It is not ordinarily our function to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence, and to resolve conflicts therein." In re Grossman, 127 N.J. Super. 13, 23 (App. Div.) certif. denied, 65 N.J. 292 (1974). "We have, though, the responsibility of determining whether pertinent principles of law were properly interpreted and applied to the facts as found by the trier thereof." Ibid.

In this case, CNA and Omni argue that the ordinary limited scope of our review does not apply and that a de novo review is in order because (a) the case does not involve disputed material facts and (b) it does not depend upon credibility determinations. Rather, they contend that the judge of compensation was called upon to analyze and interpret statutes and other legal principles and apply them to facts upon which the parties generally agree. They emphasize that, in their view, the compensation court's decision was wrong because the court misapplied the law to the facts in an effort to locate an entity that had insurance coverage. They charge that the compensation court extended coverage beyond the plain language of the insurance policy which named Omni as the Insured, by finding that the policy covered not only Omni, but also its affiliates, subsidiaries and related entities.

We agree that the scope of our review under these circumstances is de novo. We also agree that, to the extent the compensation court read or inserted the terms "its affiliates, subsidiaries and related entities" into CNA's insurance policy, it violated the controlling rules of construction. Consequently, the introduction of those terms into the court's memorializing order is not justified. The Supreme Court has instructed: "If the policy terms are clear, courts should interpret the policy as written and avoid writing a better insurance policy than the one purchased." Hardy v. Abdul-Matin, 198 N.J. 95, 101-02 (2009) (quoting President v. Jenkins, 180 N.J. 550, 562 (2004)). In this instance, that means that the Insured under the relevant policy is "Omni," not "Omni, its affiliates, subsidiaries and related entities."

Notwithstanding our disagreement with the compensation court's unwarranted expansion of the terms of the insurance policy to cover affiliates, subsidiaries and entities related to Omni, we agree with the court that the CNA policy provided coverage for Omni that compels it to pay benefits to Rader.

See, e.g., Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (indicating that an order or judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it). See also, Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974) (recognizing that appeals are taken from judgments, not from oral opinions). There is no dispute that Omni was the Insured under the CNA policy. The dispute relates solely to whether Omni was QMT's PEO at the time of petitioner's injury. It is the temporal aspect of the judge's finding that CNA and Omni challenge. They contend that ALF was then the PEO and that the judge disregarded the separate identity of the two corporate entities. They also charge that the court failed to consider or to mention the PEO statute, N.J.S.A. 34:8-67 to -79, which they contend would justify a reversal. Neither point of contention warrants a reversal.

It is well-established that "a corporation is an entity separate from its stockholders." Lyon v. Barrett, 89 N.J. 294, 300 (1982). Moreover, the general rule is that "in suits brought by an injured employee against corporations that are parents, subsidiaries, or affiliates of the plaintiff's employer,... the separate corporate identity of affiliated corporation should not be disregarded." Volb v. G.E. Capital Corp., 139 N.J. 110, 122 (1995). Consequently, "in the absence of fraud or injustice, courts generally will not pierce the corporate veil to impose liability on corporate principals." Lyon, supra, 89 N.J. at 300. See also Pulaski Const. v. Air Frame, 195 N.J. 457, 472 (2008) (reiterating that "'[v]eil piercing is an equitable remedy... not technically... for imposing 'legal' liability, but for remedying the fundamental unfairness that will result from a failure to disregard to corporate form'") (quoting Verni ex rel. Bernstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 199 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007)).

In his decision from the bench, the judge of compensation said:

I'm satisfied from reviewing the documents before me, and from hearing the testimony of Murante, and Mr. and Mrs. Mazzei that all of those companies were one and the same entity. They may have been operating under different corporate titles, but they were all owned by Mr. Schneider, controlled by Mr. Schneider, and they knew, or Mr. Schneider, I think, knew what was going on, or if he didn't, he should have known.

We do not agree with the appellant's and cross-appellant's assertion that the judge of compensation thereby ignored the separate corporate identities of Omni and ALF. Rather, the judge concluded that there was a joint employment. See, e.g., Hall v. Fanticone, 322 N.J. Super. 302, 307 (App. Div.) certif. denied, 162 N.J. 487 (1999). "A 'joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other.'" Ibid. (quoting 1C Arthur Larson, The Law of Workmen's Compensation § 48.41 (1990)).

The judge's comments may well be understood to reflect his belief that the principals of the related entities had themselves disregarded the separate corporate forms, and that they had utilized the various corporations in the Omni group to perpetuate fraud or to accomplish injustice.*fn6 On the other hand, the judge's comments are somewhat ambiguous, and, arguably, they do not provide the specificity required by Rule 1:7-4(a). Although the judge supplemented his original ruling and attempted to clarify the basis of his decision, his statements still may be seen as conclusory and lacking sufficient detail as to what, beyond the common ownership of closely-held corporations, led him to say "these companies were one and the same." Nevertheless, we are satisfied that there is sufficient evidence from which he could have concluded that Rader was simultaneously under the control of and serving whichever Omni company was acting as the employer leasing company of QMT. Moreover, because our decision is not premised solely on an asserted disregard of the corporate structures of Omni, ALF and America's PEO, and because CNA and Omni both acknowledge that Omni is insured under the CNA policy, we need not resolve whether the judge's bench opinion contained sufficient factual details to sustain the conclusion of unity he reached.

More compelling, and determinative to us, is the acknowledgement by both CNA and Omni that initially, Omni served as the PEO for QMT. Although they argue that ALF thereafter became the PEO and was serving as such when Rader was injured in May 2002, they offered no proofs that Omni was terminated or that it ended its service or ceased to be a PEO before June 2004 when Mr. Mazzei testified he ended its PEO relationship. They also presented no proof that a new employee leasing agreement between QMT and ALF was entered. They merely assert that ALF, by designation on W-2 forms, which it generated, and by its issuance of payroll funds, became the PEO as a matter of law. Assuming that is sufficient to create a de facto PEO relationship, they next assert, without elaboration, that the PEO statute, citing to N.J.S.A. 34:8-67, permits only one PEO at a time to represent an employer. We disagree.

Contrary to the categorical assertions by CNA and ALF, N.J.S.A. 34:8-67 does not explicitly state that a client company may be served by only one employee leasing company or PEO at a time. The cited provision states:

For the purposes of this act:

"Client company" means a sole proprietorship, partnership, corporation or other business entity, which enters into an employee leasing agreement and is assigned employees by the employee leasing company.


"Covered employee" means an individual co-employed by an employee leasing company and a client company pursuant to an employee leasing agreement.


"Employee leasing agreement" or "professional employer agreement" means an arrangement, under written contract, whereby:

(1) An employee leasing company and a client company co-employ covered employees; and

(2) The arrangement is intended to be, or is, ongoing rather than temporary in nature, and not aimed at temporarily supplementing the client company's work force.

"Employee leasing company" or "professional employer organization" means a sole proprietorship, partnership, corporation or other business entity, which devotes a substantial portion of its business to providing the services of employees pursuant to one or more employee leasing agreements and provides services of a nature customarily understood to be employer responsibilities including, but not limited to, those responsibilities provided in section 2 of this act. [N.J.S.A. 34:8-67.]

Both CNA and Omni assert that the court of compensation did not heed N.J.S.A. 34:8-67 in finding that QMT could have had joint PEOs, however, based upon our independent reading of the PEO statute, we reject their assertion.

We also reject the claim that the "court erred in concluding that... [Rader] was jointly employed by multiple corporate entities, including Omni[.]" While the proofs might support a finding that Omni and ALF were intermittently or concurrently acting as QMT's PEO, we are satisfied, especially in the absence of evidence of any superseding employee leasing agreement between QMT and ALF, that Omni did not cease to be the PEO before Rader was injured.

In the present state of the record, the only employee leasing agreement was between QMT and Omni. We recognize, of course, that the proposed leasing agreements in the appendix were unexecuted. Mr. Mazzei testified, however, that those documents reflect the negotiations between QMT and Omni. Although they were admitted for a limited purpose, we note that Mr. Mazzei testified that the negotiations resulted in an agreement consistent with the unexecuted contract draft dated July 31, 2007 and that testimony was unrefuted. There is no evidence that ALF ever entered into an employee leasing agreement with QMT.

By virtue of the applicable statute, a PEO and its client company are considered "co-employers" of covered employees. N.J.S.A. 34:8-67, 68(a)(6), 72. Stated more fully, an employee leasing company and the respective client companies are the: co-employers of their covered employees for the payment of wages and other employment benefits due, including the obligation under the workers' compensation law, [N.J.S.A.] 34:15-1 et seq., to maintain insurance coverage for personal injuries to, or for the death of, those employees by accident arising out of and in the course of employment. [N.J.S.A. 34:8-72(a) (emphasis added).]

As such, covered employees of a PEO such as Omni are entitled to the benefits provided by law. The Workers' Compensation Act "makes insurance carriers directly responsible to the employer's workers." American Millenium Ins. Co. v. Berganza, 386 N.J. Super. 485, 489 (App. Div. 2006). Every "contract of insurance covering the liability of an employer for compensation to injured employees... shall provide, or be construed to provide," that it is created for the benefit of the insured employer's employees, "and that such contract may be enforced by any of such employees..., suing thereon in his name... as though distinctly made a party thereto." N.J.S.A. 34:15-83. Further, N.J.S.A. 34:15-84 states that an injured employee of a covered employer may enforce the provisions of such a contract to his benefit "by joining the insurance carrier with the employer in his petition filed for the purpose of enforcing his claim for compensation[.]" Upon an insured employer's "death, insolvency, or bankruptcy[,]" an insurance carrier becomes "directly liable for all compensation payments due to any injured employee or his dependants by virtue of prior agreement[.]" N.J.S.A. 34:15-86. Also, coverage under such insurance contracts may not limit "the liability of the insurer to an amount less than that payable by the assured on account of his entire liability under" Title 34. N.J.S.A. 34:15-87.

Because N.J.S.A. 34:8-72 expressly provides that PEOs jointly employ the employees of their client companies, we conclude the judge was within the bounds of the controlling statute when he found that CNA's policy provided coverage for Rader's injuries. Rader was employed by both QMT and OMNI, and even though QMT was not a named Insured, CNA's coverage of Omni -- without regard to Omni's affiliates, subsidiaries or related entities -- would protect Rader.

We reiterate that we are convinced that the judge of compensation's findings of fact "could reasonably have been reached" on the evidence in the record, "giving due weight to his expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div. 1973). See also Sager, supra, 182 N.J. at 163-64; Close, supra, 44 N.J. at 599. We find the remaining arguments raised by CNA and Omni lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1).

Accordingly, we affirm as to both orders, with the sole exception that the matter is remanded for modification of the form of order to delete references to Omni's affiliates, subsidiaries and related entities.

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