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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,


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.


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.


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 trade contractors. Tishman entered into a contract with Air Joy, designating Air Joy the HVAC subcontractor for the site.

One of Air Joy's responsibilities was the installation of exhaust vents. This required duct openings to be cut in the exterior walls to accommodate the vents. This penetration project was claimed by Local 595 Laborers Union (Local 595). As a result, Air Joy could not use its own employees to cut the holes and, because Air Joy was not a signatory to the labor union, it was unable to hire union laborers directly. Tishman was a signatory to the labor union and therefore had the ability to hire laborers. Robert D'Amelio, Tishman's construction superintendent, explained in his deposition that Air Joy would tell him how many laborers were needed to complete a certain task and then Tishman would hire and provide the requested amount of laborers.

In August 2006, the union hall received a call and sent plaintiff, a member of Local 595, to the construction site to work on the penetration project. Plaintiff was told to report to Kenny, the Air Joy foreman, upon arriving at the site. Mark Trawinski, the owner of Air Joy, stated in his deposition that he never interviewed plaintiff or called for him, and that Tishman hired plaintiff. He regarded plaintiff as an employee of both Air Joy and Tishman. Thomas McIntyre, Air Joy's project manager responsible for day-to-day operations, testified that he was the only Air Joy employee on site and that the others were "union." It was his belief that the laborers worked for Tishman, rather than Air Joy.

According to plaintiff's deposition testimony, Air Joy employees; namely, Frank Bedatsky, Kenny, and McIntyre, directed his work. Plaintiff testified that Tishman never directed his work, and that his interaction with Tishman employees was limited to submitting his time sheets to Tishman's labor foreman after either McIntyre or Bedatsky had signed off on his time. Wayne Scaglione, one of the Tishman project managers, testified that Al McNally of Tishman gave the final sign-off on the time sheets before sending them to payroll, "[b]ecause he [was] the foreman for the laborers and [Tishman] consider[ed] [the laborers] part of the labor force."

It is undisputed that Tishman paid plaintiff directly and then charged Air Joy for plaintiff's wages. The payor on plaintiff's paychecks was Tishman, and not Air Joy. Before he ever received a paycheck, plaintiff was called into the office and asked to show his Social Security card and driver's license "to Tishman's man." It was explained then that Air Joy did not have the bond needed to directly hire union workers and that Tishman would take the amount of money it spent on paying union workers like plaintiff out of its payments to Air Joy. Nonetheless, when he was asked during his deposition who he was working for at the time of the accident in December 2006, plaintiff responded, "Air Joy." Plaintiff also maintains he was unaware that Tishman and Air Joy were affiliated with one another.

Lawrence Fox, Tishman's project foreman, testified, "Bobby Robinson worked for Air Joy on loan from Tishman[.]" (Emphasis added). Fox further testified that he regularly patrolled the site looking for safety issues and checking on the employees, and that, "if [he] saw something egregious happening by another laborer, [he could] have that person removed from the site[.]" Frank Rodriguez, another Tishman project manager, also testified that Tishman had the power to terminate union workers, and that it had exercised such power in the past.

In his deposition, plaintiff stated that Tishman called for the ambulance that transported him to the hospital after his accident. John Colella, Tishman's senior project manager, testified that, after an accident on site, a Tishman superintendent would conduct an investigation and file an incident report. Consistent with this procedure, Tishman filed a Supervisor's Accident Investigation Report following plaintiff's accident. McIntyre testified that Air Joy did not file such a report after plaintiff's accident and did not have the responsibility to do so.

The trial court found that, at the time of the accident, Tishman was plaintiff's general employer and Air Joy was his special employer, and thus both were entitled to immunity from suit under the Act. The court granted summary judgment in favor of both Air Joy and Tishman and dismissed the complaint.

Plaintiff appeals only from the trial court's grant of summary judgment in Tishman's favor. In his appeal, plaintiff argues that the trial court erred in concluding that Tishman was his employer. He argues further that even if the "dual employee analysis" applies, he was neither a general nor a special employee of Tishman.


In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J.Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We have studied the record in light of the arguments presented and are satisfied that the trial court properly granted summary judgment in this matter and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E). We add only the following.

New Jersey's Workers' Compensation Act is "designed to establish a no fault system of compensation for workers who are injured or contract a disease in the course of employment." Fitzgerald v. Tom Coddington Stables, 186 N.J. 21, 30 (2006) (quoting Brock v. Pub. Serv. Elec. & Gas Co., 325 N.J.Super. 582, 588 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000)). "[T]he Act involve[s] a historic 'trade off' whereby employees relinquish[] their right to pursue common-law remedies in exchange for automatic entitlement to benefits for work-related injuries[.]" Mabee v. Borden, Inc., 316 N.J.Super. 218, 226 (App. Div. 1998). N.J.S.A. 34:15-7 requires the employer to compensate an employee for personal injuries "arising out of and in the course of employment . . . without regard to the negligence of the employer, " thus relieving the employee of having to prove negligence or any wrongful conduct by the employer before being compensated. As noted in Mabee, the Act's remedies are exclusive. See Mabee, supra, 316 N.J.Super. at 226-27. Just as the worker is automatically entitled to benefits without proving a tort, he or she is barred from pursuing common law remedies even if the employer has been negligent. See N.J.S.A. 34:15-8 (providing that "[i]f an injury . . . is compensable" under the Act, the employee "surrender[s his] rights to any other method, form or amount of compensation or determination thereof[, ]" and the employer "shall not be liable to [the employee] at common law or otherwise on account of [the employee's] injury . . . for any act or omission"). Further, because the Act "is remedial social legislation[, ]" it "should be given liberal construction in order that its beneficent purposes may be accomplished." Fitzgerald, supra, 186 N.J. at 30 (quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974)).

Consistent with this liberal approach, New Jersey courts have recognized that an employee may have several "employers[, ] . . . any one of which may be held liable for workers' compensation benefits when that employee is injured." Marino v. Indus. Crating & Rigging Co., 358 F.3d 241, 244 (3d Cir. 2004) (citing Blessing v. T. Shriver & Co., 94 N.J.Super. 426 (App. Div. 1967)). Once an employee has received workers' compensation from one of his employers, "he may not seek identical benefits from another one of his employers, nor may he pursue a common law tort action against any of his employers." Id. at 244 n.3; see also Santos v. Standard Havens, Inc., 225 N.J.Super. 16, 26 (App. Div. 1988) (internal quotation marks omitted) (stating that it is a "fundamental principle that an employee, for the purposes of work[ers'] compensation, may have two employers, both of whom may be liable to him in compensation, and a recovery against one bars the employee from maintaining a common law tort action against either for the same injury").

In this case, plaintiff explicitly sought workers' compensation benefits from Tishman, alleging that Tishman was his employer. There is no question whether his injury was "compensable" because he was in fact compensated, recovering benefits from Tishman. He contends that he is nevertheless permitted to pursue a negligence action against Tishman because, he now asserts, Tishman was not his employer. The payment of such benefits upon demand by plaintiff is surely strong, if not dispositive, evidence of such entitlement. See Santos, supra, 225 N.J.Super. at 25. To require Tishman to now face tort liability subverts the policy underlying the Act.

Plaintiff contends that the test applicable to a determination as to whether Tishman enjoys immunity as an employer is that set forth in Kelly v. Geriatric & Med. Servs., Inc., 287 N.J.Super. 567 (App. Div.), aff'd o.b., 147 N.J. 42 (1996). The test concerns the circumstance where there is a "general employer, " who loans an employee to a borrowing employer, the "special employer." We stated:

The applicable, though not exclusive, legal criteria to establish a special employer-special employee relationship involves the following fact-sensitive five-pronged test:
(1) the employee has made a contract of hire, express or implied, with the special employer;
(2)the work being done by the employee is essentially that of the special employer;
(3) the special employer has the right to control the details of the work;
(4)the special employer pays the employee's wages; and
(5) the special employer has the power to hire, discharge or recall the employee.

[Id. at 571-72.]

Plaintiff contends that Tishman must establish each of these prongs to prove that it enjoys immunity as an employer. We do not agree.

First of all, as noted, the test is designed to establish whether the borrowing employer, i.e., Air Joy, falls within the scope of the Act. See 3-67 Arthur Larson, Larson's Workers' Compensation Law § 67.01 (2013). However, even if we apply this test, no genuine issue of fact exists as to the following: There was an implied contract of hire based upon the fact that plaintiff's services were procured by Tishman through his union, he performed work, and was paid. Tishman paid his wages. Tishman had the right to control the work and the power to both hire and discharge him.[3] Tishman was plaintiff's employer and is entitled to the immunity provided by the Act.


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