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Durham v. South State

April 23, 2010

GERALDINE D. DURHAM, ADMINISTRATRIX OF THE ESTATE OF ELWOOD DURHAM, PLAINTIFF-APPELLANT,
v.
SOUTH STATE, INC. AND SOUTH STATE, INCORPORATED DREDGE AND PLANT, DEFENDANTS-RESPONDENTS, AND PROVIDENCE WASHINGTON INSURANCE COMPANY, DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-492-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2010

Before Judges Parrillo and Ashrafi.

Plaintiff Geraldine D. Durham, administratrix of the estate of her late husband, decedent Elwood Durham, appeals from the summary judgment dismissal of her wrongful death lawsuit against defendant South State, Inc. (South State or defendant). The motion judge found that defendant was decedent's "special employer" and thus immune from common law tort liability by virtue of the New Jersey's Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142. We agree and affirm.

This matter arises from Elwood Durham's death following a March 15, 2005 accident at defendant's Bridgeton facility where decedent, who was employed by Soil Remediation Technology (SRT) at the time, was working to ready defendant's dredge pond and mine for the upcoming mining season. The following facts are as developed in the summary judgment record.

South State, wholly owned by Chester Ottinger, Jr. (Ottinger), runs a sand and gravel operation at its Bridgeton facility, which consists of an asphalt plant, a crushing facility, a shop, offices, and a quality control lab. Sand and gravel are mined from a pond on site using a dredging machine. The dredged material is pumped to a plant where it is crushed, screened, and stockpiled. The finished product is used in the construction industry. In March 2005, South State employed anywhere from fifty to two hundred employees.

In the mid 1990s, Ottinger, his father, and two other individuals formed SRT, a separate, limited liability company to process contaminated soil for reuse. Ottinger is its principal manager. SRT performs its work at South State's Bridgeton facility and all its business operations, including payroll, are run out of the same office, by the same individuals, as South State's business operations.

From its inception, SRT had other customers in addition to South State, but since the market for soil remediation declined, SRT conducts most of its business with South State. In fact, SRT does not make a profit. It is structured so that its accounts balance at year's end, with funds provided directly by South State commensurate to the sums SRT expends for its payroll. However, SRT does have its own means to bill those few customers for the remediation services performed, and SRT employees receive separate paychecks.

At the time of decedent's accident, SRT employed about twenty persons, including decedent, who was hired as a "front end load" operator approximately two years earlier. All SRT employees are of equal rank, directly supervised by South State's senior staff, and hired and terminated by Ottinger, on the recommendations of South State's supervisors.

Due to a decreasing customer base, while still performing soil remediation work, SRT employees, including decedent, also performed tasks for South State under the direction and instruction of defendant's higher ranking employees, specifically David Spoltore, South State's Quality Control Director, and Roger Smith, head of South State's Materials Operation. Especially during the winter months when South State's mining operation shut down, employees of SRT and South State would work together, doing maintenance and other related tasks in South State's yard. According to Smith, SRT employees were at his disposal whenever he needed them to perform work at South State's yard. Thus, in addition to his duties for SRT, decedent would assist Chris Biscoglio, a South State employee, with maintenance duties.

On the morning of March 14, 2005, Spoltore assigned decedent, Biscoglio, and Howard Gandy, another South State employee, the task of retrieving a dredge anchor which had become lodged in the bottom of the dredge pond at the end of the previous year's mining season, the final winter maintenance task that needed to be performed at South State's yard. Decedent had assisted in retrieving anchors on about four or five past occasions.

In the course of retrieving the anchor, decedent and Biscoglio were working aboard South State's dredge boat in the middle of the dredge pond, while Gandy attempted to assist the retrieval efforts from a ten-ton mobile crane stationed on the shoreline. While Gandy was repositioning the crane to take up the additional slack in the cable, the workboat capsized, throwing decedent and Biscoglio, who were not wearing the life preservers provided in the boat, into the dredge pond. Decedent sustained various injuries which eventually led to his death on March 24, 2005. Decedent's estate received death benefits from the same workers' compensation carrier under the same policy for both SRT and South State.

The instant wrongful death lawsuit on behalf of decedent was filed against South State on February 12, 2007. Following discovery, defendant moved for summary judgment based on its claimed "special employment" relationship with decedent, arguing the Act, under which decedent's estate had recovered death benefits, affords South State immunity from tort liability. After a hearing, the motion judge agreed, granting summary judgment dismissal of plaintiff's complaint, and finding:

I think without going through all the factors, first of all, (inaudible) factors and you ...


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