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Richard Tappel, An Incompetent By His Guardian Ad v. Renso F. Arango

December 5, 2012

RICHARD TAPPEL, AN INCOMPETENT BY HIS GUARDIAN AD LITEM, JANICE TAPPEL AND JANICE TAPPEL, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
RENSO F. ARANGO, LUIS GAVIRIA, LG TRUCKING, DEFENDANTS,
AND TILCON NEW YORK, INC., DEFENDANT-RESPONDENT.
EDWIN C. JOHNSON, JR., INDEPENDENT EXECUTOR OF THE ESTATE OF EDWIN C. JOHNSON, DECEASED,
PLAINTIFF-APPELLANT,
v.
RENSO F. ARANGO, LUIS GAVIRIA, LG TRUCKING, DEFENDANTS,
AND TILCON NEW YORK, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5012-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 2, 2012

Before Judges Reisner, Yannotti and Hoffman.

Plaintiffs appeal from the December 9, 2011 Law Division order granting the summary judgment motion filed by defendant Tilcon New York (Tilcon), and the resulting dismissal of their claims against Tilcon. They also appeal from the January 20, 2011 order denying their motion for reconsideration. After careful review, we conclude the record before the trial court presented a genuine issue of material fact regarding the issue of agency. Accordingly, we reverse.

I.

In the early morning hours of August 29, 2006 in Union Township, defendant Renso Arango (Arango) crashed the dump truck he was driving into the back of the vehicle driven by plaintiff Richard Tappel (Tappel) causing serious injuries to Tappel and fatal injures to his passenger, Edwin Johnson.*fn1 At the time of the accident, Arango was employed by a trucking company owned by defendant Luis Gaviria (also the owner of the truck involved in the accident) doing business as LG Trucking. On the day of the accident, Arango was driving from the LG Trucking parking lot to a site in Mount Hope owned and operated by Tilcon in order to pick up and then deliver a load of construction materials.

Tilcon produces construction materials and provides road construction services in New York and New Jersey. It operates quarries, asphalt plants and material recycling facilities at various sites; its construction services include asphalt paving, road construction, and related work. At the Mount Hope location, Tilcon conducts asphalt, aggregate crushed stone, and recycling operations. Tilcon supplies material to its construction crews as well as outside contractors involved in commercial and public works projects.

Tilcon does not utilize its own trucks to deliver construction material; instead, it uses independent trucking contractors. In 2006, Tilcon utilized over three hundred such contractors to deliver its material. Tilcon pays the trucking companies, referred to as "vendors," on a per delivery basis to haul materials either to a Tilcon construction site or to an outside Tilcon customer.*fn2 While all of Tilcon's in-house paving crews are supplied materials by the outside trucking contractors, less than five percent of external sales are delivered using these vendors.*fn3

In order to haul material for Tilcon, trucking companies must enter into a vending agreement with Tilcon, which outlines Tilcon's terms and conditions, mandatory safety compliance information and insurance requirements. Once a trucking company signs this agreement it becomes eligible to haul from Tilcon facilities. On December 5, 2005, Tilcon and LG Trucking entered into such an agreement, titled Trucking Material Supply Agreement. The agreement required LG Trucking to provide the following insurance coverage: Workers Compensation Coverage with a liability limit of $500,000; Commercial General Liability Coverage with a liability limit of $1,000,000 per occurrence and $3,000,000 in the aggregate; and Business Automobile Liability Coverage with a liability limit of $1,000,000. The agreement further provided:

This Trucking Material Supply Agreement shall not constitute an exclusive arrangement and Tilcon shall remain free to engage persons to perform hauling work including work of the same type then being performed by this Trucking Material Supplier. Trucking Material Supplier acknowledges that its status under this Agreement, and its relationship to Tilcon in all respects, shall be that of an independent contractor, and not an employee, agent, or subcontractor, and Trucking Material Supplier shall not make any commitment nor incur any charges or expenses in the name of Tilcon.

In July 2001, Gaviria started the corporation LG Trucking, which primarily hauled materials for Tilcon.*fn4 In August 2006, the corporation operated two trucks, one driven by Gaviria and the other driven by Arango. Arango began working for LG Trucking about one to three months before the accident and continued at LG Trucking for about two and a half years after the accident. Arango currently works for Leo's Trucking, another trucking contractor that performs hauling services for Tilcon. Before his employment with LG Trucking, Arango worked for multiple other trucking contractors that did work for Tilcon over a period of several years. He initially met Gaviria while both were hauling from Tilcon's Mount Hope facility.

Each morning, Arango arrived at the Mount Hope Tilcon site between 5 and 6 a.m., where he would report to the Tilcon dispatcher. The dispatcher would direct him to his first delivery, would require that he return after the delivery, and would then direct him to his next delivery. The Tilcon dispatcher also controlled when Arango left work for the day. For safety, Tilcon required Arango to wear safety boots, a helmet and a reflective vest, as well as to stay up to date on Tilcon's safety procedures.

II.

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The determination of whether there is a genuine issue of material fact should be made viewing all relevant evidence and reasonable inferences "in the light most favorable to the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 ...


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