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Martha Orbe, Administratrix Ad Prosequendum of the Estate of v. the Manitowic Company

March 8, 2012

MARTHA ORBE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF AMADO GUILLERMO ORBE, DECEASED, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
THE MANITOWIC COMPANY, INC.; MANITOWIC CRANE GROUP D/B/A GROVE; 1825 MCCARTER HIGHWAY CORP.; AND SAFER PIGMENT CORP., DEFENDANTS,*FN1 AND GAR EQUIPMENT CORPORATION, DEFENDANT-RESPONDENT, AND SAFER TEXTILE PROCESSING CORP. AND SAFER HOLDING CORP., DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5073-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012 -

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff's decedent, Amado Guillermo Orbe (Orbe), sustained fatal injuries while using a manlift to remove overhead piping inside a building. Plaintiff appeals from the trial court order granting partial summary judgment to Safer Holding Corporation ("Safer Holding") and Safer Textile Processing Corporation ("Safer Textile"), (collectively "defendants"). The motion judge declared that at the time of Orbe's fatal accident, his work responsibilities were such that he was part of a joint business relationship that existed amongst and between all of Safer Holding's business entities located in Newark, rendering him an employee of all of those entities for purposes of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 ("Act"). Plaintiff also appeals the denial of her motion seeking leave to amend the complaint to name as additional defendants other entities owned by Safer Holding. Defendants cross-appeal from the motion judge's denial of their motion to dismiss plaintiff's common law intentional tort claim under Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002), and her punitive damages claim.

While we are satisfied the motion judge correctly concluded Orbe was a joint employee of Safer Holding's subsidiaries, namely Kuttner Prints (Kuttner), Meadows Knitting (Meadows), Safer Pigment, and Safer Textile, we find no such joint employment relationship with Safer Holding. It served merely as a holding company with no employees or any other indicia of an employer and employee relationship from which joint employment may be found as to Orbe.

We also reverse the denial of defendants' motion for summary judgment dismissing plaintiff's Laidlow and punitive damages claims. We are satisfied the facts, when viewed in a light most favorable to plaintiff, fail to establish a prima facie case of an intentional wrong sufficient to justify an exception to the exclusivity provisions of the Act, which must be narrowly construed.

Finally, we affirm the denial of plaintiff's motion to amend her complaint to name, as additional parties, other Safer Holding entities. We conclude that because the motion was made on the eve of trial, the motion judge did not abuse his discretion in denying the motion without prejudice to plaintiff seeking leave to conform any judgment reached to the proofs presented at trial.

I.

Our review of a trial court order granting summary judgment is de novo, and we apply the same standard as the trial court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts we have viewed in a light most favorable to plaintiff. Safer Holding is a textile business owned exclusively by Albert Safer ("Safer") and two trusts created for his children. He started the business in 1977. The holding company is the parent of several core entities: Safer Pigment, Meadows, Kuttner, and Safer Textile.*fn2

Together, these companies formed Safer's textile operation in Newark. Safer Textile, located at 1875 McCarter Highway (1875), handled the dying and finishing of fabrics. Safer Pigment, located at 1825 McCarter Highway (1825), undertook pigment printing on fabrics. Meadows, located at 241 Oraton Street, which was around the corner from 1825 and 1875, was responsible for fabric knitting. Finally, Kuttner, housed in 1875, handled the payroll for the core entities and also provided sales and marketing services for the companies.

Safer was the President and Chief Executive Officer (CEO) of all the core Safer entities. Each core entity had its own employees. Specifically, Kuttner had 51 employees, Meadows had 50 employees, Safer Textile had 151 employees, and Safer Pigment had 8 employees. Each core entity also had its own payroll identification number, but Safer Holding filed one consolidated tax return, including income and loss information for each of the core entities.

Orbe, at the time of his death, worked as an electrician and maintenance worker primarily at Meadows and, when needed, at the other core entities. He was listed on Kuttner's payroll documents, but his health insurance documentation listed Meadows as his employer. During discovery, depositions were taken of Gilberto Martinez and Robert Winning. Winning worked as the maintenance manager for Safer Textile but handled "[r]epairs and maintenance to the equipment at all the sites." Martinez was employed as the maintenance supervisor for Safer Textile and reported to Winning. Winning testified that Safer would ask employees working at one facility to perform work at another facility, stating "[i]f there wasn't a lot of work to be done at the other facility, in order to fulfill the days and time, and keep everybody working, we might have asked an employee to come over and assist in another job." Winning clarified that when he used the term "we," he was specifically referring to Safer. Winning was also unable to recall whose idea it was to use Orbe at 1825 to remove piping, but he agreed that he would have made the decision if he knew that Orbe was available.

Juan Perez, Orbe's co-worker at Meadows, was also deposed. He, like Orbe, worked at multiple locations. He explained that he might work one time at one building, and on another occasion, he might work twenty times at another building. He also testified that equipment was shared and that he observed Orbe operating the manlift at the Oraton Street location, 1875 and "[a]ll over." On the day of Orbe's fatal accident, Winning contacted him at Meadows and told him that he needed Orbe to do a job.

Martinez testified that on the morning of October 11, 2007, he went over to 1875 at the direction of Winning. He indicated that he met Orbe in the maintenance shop at 1875, and together they walked to 1825, where the piping was to be removed. Winning later paged him to meet him at another location, and he left the area at 1825 where he and Orbe had been removing piping.

There were no witnesses to the accident. Perez discovered Orbe slumped over the manlift and immediately ran for help. Winning arrived at the scene, called 911, lowered the manlift, and attempted CPR because he thought Orbe may have had a heart attack. It was not until the next day, while being interviewed by Louis G. Murphy from the Occupational Safety and Health Administration (OSHA), he learned that Orbe's liver had been crushed and that he suffered other internal injuries.

Murphy conducted the OSHA inspection the day after the accident and surmised Orbe "apparently started to raise the platform[,] either intentionally or unintentionally[,] with his left hand on the control . . . ." He believed Orbe "may have been trying to drop the lift a few feet as he was found slumped over the guard rail with his arms extended downward and his pliers, screwdriver and eye glasses on the floor." He recommended that no citation be issued as a result of the accident because it appeared the accident was caused by Orbe "inadvertently raising the platform or attempting to gain a few more inches to enable him to reach the coupling on the conduit." He issued a citation for failure to report the accident within eight hours, as required under OSHA. Murphy's inspection report revealed no equipment malfunctions.

A report from an inspection conducted on behalf of Safer Textile on December 19, 2007 stated that there had been post-sale alterations to the manlift and that it had "clearly fallen into a significant state of disrepair and/or has other deficiencies which would similarly dictate that the unit should be taken out of service until such time as the unit has been thoroughly and properly inspected and all deficiencies corrected." The report identified a number of specific problems with the manlift, including:

* The top rail at the platform entrance was missing. The chain enclosure at the mid-rail had been modified.

* The upper control box did not function correctly. Function tests indicated that the control box wiring had been altered to allow the following:

* The controller activation overrides the enable circuit for all operating modes.

* The platform was permitted to lower even when the emergency stop button was activated.

* There was damage to the electrical cable entering into the upper control box.

Plaintiff's expert conducted an inspection of the manlift on January 8, 2010. His inspection also revealed that the enable button safety feature had been bypassed and the manlift was activated by either intentional or inadvertent contact with the joystick handle. The modification also partially disabled the emergency stop (ES) function, which meant that the platform could still be lowered, even if the ES button had been pressed.

The manlift involved in the incident was a self-propelled elevating platform, serial number 44626, manufactured by Grove, and it was one of two manlifts purchased by Safer Textile from GAR Equipment in 1998. Although both manlifts were initially delivered to Newark following their purchase, manlift 44626 was immediately shipped to another Safer-owned entity, Rainbow Mills, located ...


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