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Nickemea Whitfield v. Bonanno Real Estate Group

May 12, 2011


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1604-07.

The opinion of the court was delivered by: Messano, J.A.D.



Argued October 26, 2010

Before Judges Carchman, Messano and Waugh.

The opinion of the court was delivered by MESSANO, J.A.D.

This appeal involves a question of first impression in New Jersey. Specifically, may plaintiff pursue a third-party action in negligence against a general partnership after receiving workers' compensation benefits from her employer, a partner in that partnership? We conclude that the immunity provided by N.J.S.A. 34:15-8 does not bar plaintiff's third-party action against the partnership. We therefore affirm.


The following undisputed facts are apparent from the motion record. Plaintiff was employed by Time Warner Entertainment Co., L.P. (Time Warner), and worked at 200 Roosevelt Place in Palisades Park. On March 9, 2005, at approximately 7:30 p.m., she was injured when she slipped on black ice in the parking lot. Plaintiff filed a workers' compensation petition naming Time Warner as the respondent and subsequently received workers' compensation benefits.

Plaintiff also filed suit in the Law Division. In her third amended complaint filed on January 14, 2009, plaintiff named Bonanno Real Estate Group and Time Warner Entertainment-Advance/Newhouse Partnership a/k/a TWFanch-one Co. (TWF) as defendants, alleging that they "owned, managed, supervised, and . . . control[led]" the property in a negligent manner. She named Tryon Management Corp., Antonio Vallari, and Vallari Lawn Service as defendants alleging that they "were employed to do snow removal," and did so negligently.*fn1

TWF moved for summary judgment relying upon the certification of Riina Tohvert, "corporate legal administrator for Time Warner." Tohvert certified that plaintiff was an employee of Time Warner and TWF was "the lessee of the property located at 200 Roosevelt Place." Tohvert then described the relationship between the two entities:

[TWF] . . . is a Delaware general partnership. Its managing general partner is Time Warner . . . ; it owns 98.99% of [TWF]. The remaining 1.01% is owned by Time Warner Cable Holdings Inc. Time Warner [Cable] Holdings Inc. is 100% owned by Time Warner . . . .

In response to plaintiff's discovery requests, TWF had further asserted that it had no employees and did not maintain workers' compensation insurance.

TWF argued that it was immune from suit pursuant to N.J.S.A. 34:15-8 because "the immunities . . . that . . . the partner has pass as well to the partners in the partnership." Denying the motion, the judge concluded that Time Warner and TWF were separate and distinct entities. He further reasoned that TWF should not be permitted to benefit from being a separate entity from Time Warner while at the same time avoiding the consequences. He denied summary judgment.

The parties subsequently entered into a consent judgment settling plaintiff's claim for $180,000 and dismissing her complaint against TWF and all remaining co-defendants.*fn2 The consent judgment expressly reserved TWF's right to seek review of the order denying summary judgment. In a separate settlement agreement, plaintiff and TWF agreed that "[i]f the final Appellate Court to hear the appeal reverses, modifies or otherwise disturbs the order denying summary judgment, th[e] stipulated settlement that [was] part of the consent judgment [would be] vacated. . . . And [TWF] would not be obligated to carry out the terms of the settlement." TWF now appeals from the denial of its motion for summary judgment.*fn3


In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins., supra, 387 N.J. Super. at 231.

In this case, the facts were essentially undisputed and the judge's decision was based upon the legal conclusions he drew from those facts. We owe no deference to the judge's interpretation of the law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

(a) We start by reviewing the statutory framework of the Workers' Compensation Act (the WCA), N.J.S.A. 34:15-1 to -128. The WCA provides that "[w]hen personal injury is caused to an employee by accident arising out of and in the course of his employment, . . . he shall receive compensation . . . from his employer." N.J.S.A. 34:15-1.*fn4 "When employer and employee . . . by agreement . . . accept the provisions of [the WCA,] compensation for personal injuries to . . . such employee . . . shall be made by the employer without regard to the negligence of the employer." N.J.S.A. 34:15-7. As the Court recently explained:

New Jersey's long-standing and comprehensive statutory scheme of workers' compensation coverage is "designed to establish a no fault system of compensation for workers who are injured or contract a disease in the course of employment." Brock v. Pub. Serv. Elec. & Gas Co., 325 N.J. Super. 582, 588 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000). We have consistently held that our statutory workers' compensation scheme "is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished." Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974). [Fitzgerald v. Tom Coddington Stables, 186 N.J. 21, 30 (2006) (citation omitted).]

By agreeing to the statutory scheme, "the parties . . . [surrender] their rights to any other method, form or amount of compensation." N.J.S.A. 34:15-8. N.J.S.A. 34:15-8 immunizes the employer and co-employees of the injured worker, "except for intentional wrong[s]." Ibid. "[T]he quid pro quo . . . [i]s that employees . . . receive assurance of relatively swift and certain compensation payments, but . . . relinquish their rights to pursue a potentially larger recovery in a common-law action." Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985); see also Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 411 (2003) (Verniero, J., concurring) ("[The WCA] seeks to protect injured workers from becoming mired in costly and protracted litigation that could delay payment of their claims.").

On the opposite side of the bargain, although "the employer assumes an absolute liability[,] [h]e gains immunity from common-law suit, even though he be negligent, and is left with a limited and determined liability in all cases of work-connected injury." Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 489 (1960).

However, "[w]here a third person is liable to the employee for an injury or death, the existence of a right of compensation from the employer . . . shall not operate as a bar to the action of the employee." N.J.S.A. 34:15-40 (emphasis added). "The words 'third person' as used in this section include corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals." ...

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