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Robinson v. Tishman Construction Corp. of New Jersey

Superior Court of New Jersey, Appellate Division

June 28, 2013

BOBBY ROBINSON, Plaintiff-Appellant,
v.
TISHMAN CONSTRUCTION CORP. OF NEW JERSEY [1], Defendant-Respondent, and AIR JOY HEATING AND COOLING, INC. and PARAMOUNT HOMES AT ASBURY URBAN RENEWAL, LLC, Defendants. TISHMAN CONSTRUCTION CORP. OF NEW JERSEY and PARAMOUNT HOMES AT ASBURY URBAN RENEWAL, LLC, Third-Party Plaintiffs,
v.
HARLEYSVILLE INSURANCE COMPANY OF NEW JERSEY,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2012

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5458-08.

Bruce P. Fromer argued the cause for appellant (Nelson, Fromer, Crocco & Jordan, attorneys; Mr. Fromer, on the briefs).

Daniel B. McMeen argued the cause for respondent (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Philip A. Garubo, Jr., of counsel and on the brief; Mr. McMeen, on the brief).

Before Judges Graves, Espinosa and Guadagno.

PER CURIAM.

Plaintiff Bobby Robinson appeals from an order that granted summary judgment to defendant, Tishman Construction Corp. of New Jersey (Tishman), and dismissed his negligence action as barred by the immunity provision of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128. We affirm.

Plaintiff was working at a construction site in Asbury Park, using a jack hammer, when the jack hammer "kicked back" and knocked him off a ladder. He suffered injuries to his neck and back.

Plaintiff filed two Employee Claim Petitions seeking workers' compensation benefits. The first, filed in December 2006, named Tishman, the construction manager of the site, as a respondent. The second, filed in April 2007, named Air Joy Heating and Cooling, Inc. (Air Joy), the heating, ventilation, and air conditioning (HVAC) subcontractor for which plaintiff worked directly, as respondent. Tishman filed an answer in which it affirmed that plaintiff was in its employ on the date of the accident. Although Air Joy denied being plaintiff's employer in its answer, both Tishman and Air Joy paid workers' compensation benefits to him as part of a settlement agreement.

Despite his receipt of workers' compensation benefits from them, plaintiff filed a complaint against both Tishman and Air Joy in November 2008, alleging he suffered personal injuries as a result of their negligence, and seeking damages for those injuries. Both Tishman and Air Joy filed motions for summary judgment.

The motion here turned on a legal issue, whether Tishman was plaintiff's employer at the time of the accident and therefore entitled to immunity for any alleged negligence pursuant to N.J.S.A. 34:15-8. We review the facts and procedural history relevant to the issue before us.

I.

The construction site was owned by Paramount Homes at Asbury Beach Urban Renewal, LLC (Paramount), which sought to build three buildings of residential units on its property. Paramount entered into a contract with Tishman, designating Tishman the construction manager of the project. The contract required Tishman to provide administrative and supervisorial staff for the site, monitor labor levels and equipment deliveries, and manage and assess the performance of all ...


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