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Arthur Wilkinson and Deborah Wilkinson v. S.B. King & Son

July 21, 2011

ARTHUR WILKINSON AND DEBORAH WILKINSON, PLAINTIFFS-RESPONDENTS,
v.
S.B. KING & SON, INC. AND ROBERT FRIZELL, INC., DEFENDANTS, AND SEA HOME CONSTRUCTION, INC., DEFENDANT-APPELLANT, AND LINDA O. KING AND ED KING, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
SELECTIVE INSURANCE COMPANY, THIRD-PARTY DEFENDANT. ARTHUR WILKINSON AND DEBORAH WILKINSON, PLAINTIFFS-APPELLANTS,
v.
S.B. KING & SON, INC. AND SEA HOME CONSTRUCTION, INC., DEFENDANTS, AND ROBERT FRIZELL, INC., DEFENDANT-RESPONDENT,
AND LINDA O. KING AND ED KING, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
SELECTIVE INSURANCE COMPANY, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Number L-3195-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued and Submitted February 15, 2011

Before Judges Carchman, Graves and Waugh.

Plaintiff Arthur Wilkinson sustained serious injuries when he fell from a scaffold while employed on a renovation project. He brought an action*fn1 against his employer, Robert Frizell, Inc. (Frizell, Inc.), claiming that the improper construction of the scaffold and the failure to provide him with a safety harness constituted an intentional wrong. He joined another entity, defendant Sea Home Construction, Inc. (Sea Home), owned by Robert Frizell's wife, contending that Sea Home was a subcontractor on the project and also liable for his injuries.

After first denying Frizell, Inc.'s motion for summary judgment, the trial court granted reconsideration and dismissed the claim concluding that Frizell Inc.'s conduct was not so plainly beyond the type of conduct the Legislature intended to immunize under the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -136.1. The judge also denied a summary judgment motion by Sea Home, because he found there was an issue of fact with respect to the company's existence and its involvement at the job site. The matter then proceeded to trial and the jury found in plaintiff's favor against Sea Home.

Plaintiff appeals the dismissal of his case against Frizell, Inc.; and Sea Home, in a separate appeal, which we now consolidate for the purposes of this opinion, appeals from the denial of its motion for summary judgment.

We conclude that the judge properly granted summary judgment as to Frizell, Inc. and improperly denied Sea Home's motion for summary judgment. Accordingly, we affirm as to Frizell, Inc. and reverse as to Sea Home.

I.

We provide an expansive view of the facts as presented to the judges on the various motions under review.*fn2

Robert Frizell (Bob)*fn3 was the president of Frizell, Inc., which he had incorporated as a business in 1974. His wife, Linda Frizell (Linda) was the office manager. Bob specialized in renovations of historical residences.

On March 28, 2003, Frizell, Inc. entered into a contract with Linda King and Ed King (King) for the restoration of the Williamson-Sickels barn located at 21 Driftwood Lane, Colts Neck. The property was owned by the Kings. King and Frizell, Inc. were the sole parties to the contract.

Bob signed the contract as president of Frizell Inc., and as president, he was listed as the contractor's sole representative. The contract was a standard American Institute of Architects (AIA) contract between an owner and contractor that incorporated by reference AIA's general conditions for a construction contract. Under those provisions, Frizell Inc. was "fully and solely responsible for . . . jobsite safety . . . ."

In October 2003, when the barn was being renovated, Frizell, Inc. had four employees, including Bob, Linda, Gadencio Villa (referred to as "Villa", "Goudy" or "G"), who worked as a helper and laborer, and plaintiff. Plaintiff initially had worked for Bob from 1993 to 1995, and then left because he had an accident. He returned in 1998, and in the interim, he had worked in the housekeeping department of a hospital.

Bob described plaintiff as "a carpenter," who also worked "[a]t times" as a laborer. Plaintiff characterized himself a "laborer" who did "everything from concrete work to roofing."

He "dug footings . . . laid block, built additions, decks, roofs," and "whatever [Bob] needed me to do."

For the King barn, Frizell, Inc. repointed the stonework, restored the flooring, shored up the oak beams and shingled the roof. Plaintiff said he knew how to do the work "[f]rom previous jobs . . . ."

They also re-sided the barn with shingles. The re-siding required the erection of a scaffolding "pump jack system" that would allow the workers to advance up the side of the building as they installed the shingles. The pump jack system consisted of poles that were made of two "two-by-fours" that were nailed together, a mechanical pump that was similar to a car jack, a bracket and an adjustable aluminum or wooden plank, called "a pick." The height of the scaffold was created by nailing together overlapping two-by-fours of various lengths. A metal collar was screwed into a beam on the barn's roof with an "L" bracket to hold the poles erect and to keep the planks suspended if a lower portion of the poles broke.

Plaintiff had worked on the pump jack system with Bob on five other projects, but he had never erected the system. In his deposition, plaintiff said he and Villa started to erect the pump jack, but they "ran into trouble and Bob showed up and Bob finished helping us."

The "trouble" was that two of the two-by-four pump jacks "snapped." Plaintiff testified at his deposition:

Bob kept the poles, the real long poles he kept out in his yard. He saved a lot of wood from the jobs. He had -- out beyond his barn he had a big pile of wood, pump jacks, planks that he would keep out there. These are -- we really don't use the long two by four pump jacks often. These were built for another job approximately two years before this job. After the job, instead of throwing them away, Bob stored them out in the yard. When we did this job, he told us to grab the four pump jacks and bring them to the job. We brought them to the job. . . . [W]e got to the job. He told me and G to start erecting them. The first one we were erecting snapped. We went onto the second one. We were walking it up. It got to a certain point and it snapped.

I called Bob on his cell and told him the pump jacks are old and brittle. I felt they were old and brittle.

He said he was five minutes out and when he came he would look at it. When he showed up, he said instead of going out and buying new lumber, we'll tie a rope to the end, have G go up on the roof and pull it up that way and I footed it. . . . G pulled it up and I walked it up so it wouldn't snap. He said . . . once they were erected straight up and down they were strong as steel. [(Emphasis added).]

Plaintiff screwed the top of the system to the roof beam. In his deposition, he estimated the scaffold was "[a]pproximately 25 to 30 feet" high.

Once the pump jacks were set up, plaintiff left for a one-week vacation. While he was gone, Bob and Villa began on one side of the barn, and when plaintiff returned, he and Villa continued to work on that same side. Bob would check their work at the end of the day. They gradually raised the pick as they worked up the side of the barn.

Plaintiff had been working on the re-siding at a height of between 25-30 feet for approximately two weeks when the scaffold collapsed on October 22, 2003, and plaintiff was seriously injured.

Plaintiff stated that the wooden pump jack "snapped." "[T]he force of the weight . . . ripped" and detached the "L" bracket from the roof, and the entire system fell to the ground. With the exception of the set-up day, during the two weeks plaintiff had used the scaffolding, he had not noticed anything that caused him concern or indicated there might be a problem. He saw no cracking wood or other indication the pole might break.

However, he also said that when they had worked on the front and side of the barn in July, "one of the pump jacks started to blow out and we took it down and put more nails in it and put it back up." Plaintiff asked Bob for a safety harness and Bob told him, "We don't have one, tie a rope around [yourself]." Plaintiff claimed Bob also had failed to provide him with a hard hat despite his requests for one.

Bob examined the collapsed scaffolding when he returned from vacation. He said there was "a knot" at the joint where they had nailed together the two-by-fours, "and it just weakened that position."

The parties disagreed about who had placed the scaffolding into position with Bob asserting that plaintiff had moved the scaffolding to work on another side. Bob claimed that photographs showed that the poles had been placed directly onto the ground, but "they're usually set on a piece of wood so they don't sink." "They should have been tied into the building," but he did not see that they were.

In addition, the photographs showed no rail which, according to Bob, normally would have been placed behind the worker. The rail was created by a two-by-four lashed to the system with wires, and it was the responsibility of the person working on the system to put on the rail. Bob said the system rails were in place when he used it for the other sides of the barn.

Bob provided plaintiff with "[o]ngoing on the job training" of "as much information and as much knowledge as he was ready to absorb." He "instructed [plaintiff] on the erection of the scaffolding, how to brace it."

A major issue in the summary judgment motions was whether Sea Home had any liability for plaintiff's accident. When Frizell, Inc. had been incorporated in 1974, it primarily engaged in small commercial construction business. Sea Home was created to engage in residential renovations during the 1989-to-1990 downturn in the commercial construction business. According to Bob, Sea Home "was an idea that never got off the ground" because he "got into the public work instead."

All of plaintiff's wage and tax records established that in 2003, he was paid by Frizell, Inc.: his W-2 for 2003 was from Frizell, Inc.; all of his paychecks for 2003 were under the name "Bob Frizell Builders"; and quarterly reports to the State Division of Revenue for the quarters ending March and September 2003 showed plaintiff's wages as being paid under the taxpayer ID of Frizell, Inc.

The only contract for the work on the barn was between Frizell, Inc. and King; there was no contract between Sea Home and King. When asked, "[W]hat was Sea Home's function" at the King barn site, Bob responded, "None" and that Sea Home had had "[a]bsolutely" no role in the project.

A certificate of insurance issued to King named both Frizell, Inc. and Sea Home. The certificate established that a general, automobile, and excess liability policy had been issued, and a workers' compensation policy had been issued under a separate "WCP" policy number. An insurance policy issued by Selective Way Insurance Company for property, general liability, automobile, and umbrella coverage, for the period May 21, 2003, to May 21, 2004, showed the named insured as "ROBERT FRIZELL, INC. & SEA HOME CONSTRUCTION, INC."

Bob explained that he had applied for insurance for Sea Home in the past, but he did not maintain it at the time of the accident. He did not know why Sea Home's name was on the certificate and said the insurance company had "put it on there."

During his deposition, Bob was questioned about Sea Home's status as follows:

Q. How many jobs per year would Sea Home Construction take on?

A. I don't -- I don't recall. I don't recall any being -- I don't recall any contracts being under Sea Home.

Q. Are you a principal of Sea Home Construction?

A. I don't think so.

Q. That would be Linda?

A. Yes.

Q. Have you ever bid any jobs under Sea Home Construction?

A. I don't think so.

Q. Ever negotiate any contracts under Sea Home?

A. I don't think so.

Q. Do you have any vehicles that are used for Sea Home Construction?

A. No.

Q. Any equipment, heavy duty equipment under Sea Home Construction?

A. No.

Q. You pay taxes under Sea Home Construction?

A. I believe we've eliminated Sea Home Construction. I think that's been done.

Q. Do you know when?

A. No.

Q. Linda would know all that?

A. Linda would probably have a record of it.

She would have the records in the office somewhere.

When asked if he had "ever filed taxes under Sea Home Construction," Bob replied, "No, I don't think so," but he said "Linda would know."

At Linda's deposition, she said she had paid taxes on Sea Home in 1996 and 1997 but that she had dissolved the company in 1997; moreover, according to Linda, they never obtained any jobs under Sea Home.

When asked how she had dissolved the company, Linda replied:

[W]hen the State sent in for quarterly reports, I sent in a letter saying I dissolved it, the state, the federal, that's all I recall at this point and it ceased to exist.

I wouldn't be paying taxes. There was nothing left. I never received anything that they wanted anything from me and I assumed that was it . . . .

She also said they had stopped using the Sea Home phone number when the company dissolved, and they had advertised for Sea Home on the utility trucks that were used for the Frizell, Inc.

Linda said she had asked her agent to take the Sea Home name off the insurance and did not know why it was still there.

It was an "oversight" that she had just "ignore[d]" because, to her, "that company is so long gone." The insurance bills were addressed to Frizell, Inc., and she used that account to pay them. She said her husband would tell her to get an insurance certificate for their jobs, and she would call the insurance agency for the certificate. Regarding the certificate of insurance that she obtained for the King job, Linda said:

Q. Whoever you spoke to at Conover Byer, do you recall with respect to this job and getting insurance coverage for this job and getting the certificate for insurance with respect to this job, do you remember specifically what you told that person in terms of getting additional insurance coverage?

A. It's not something you really discuss. I would call her up. Sometimes I don't even talk to ...


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