NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-669-11.
Kevin L. Parsons argued the cause for appellants (Gill & Chamas, attorneys; Mr. Parsons, of counsel and on the brief).
James S. Raban argued the cause for respondent (Gold, Albanese & Barletti, attorneys; Robert Francis Gold, of counsel; Mr. Raban, on the brief).
Before Judges Reisner, Ostrer and Carroll.
June Chalmers (plaintiff) and her husband appeal from a November 16, 2012 order granting summary judgment dismissing their complaint against defendant Stephen J. Swartz, M.D. We affirm the grant of summary judgment, and remand for the limited purpose of transferring the case to the Division of Workers' Compensation.
Plaintiff worked at a medical office, providing cleaning services. According to plaintiff, while taking out the garbage on August 20, 2010, she fell on a discarded piece of pipe in a dark area at the rear of the medical building. She did not immediately report the accident or the serious infection that apparently developed thereafter. However, on February 4, 2011, she filed a lawsuit for personal injuries against Dr. Stephen Swartz (Stephen), who with his father, Dr. Harry Swartz (Harry), had his medical practice in the building. Plaintiff claimed that she was solely employed by Harry. She sued Stephen because he owned the building where the medical offices were located, and she claimed he was negligent in maintaining the premises.
The following facts were undisputed. Harry began practicing medicine in the building in 1958. Stephen began practicing there in 1987. Plaintiff and her sister-in-law were hired to clean the office in 2004. They worked on alternate weeks, Monday through Friday; each week, one of the women would clean the entire building. Plaintiff conceded that both doctors worked on the premises. She testified that she did not know how much time Stephen spent there, or what his role was in the medical practice, because she arrived to clean the offices at night after the employees had left and had no interaction with Stephen.
According to Stephen's deposition testimony, he usually spent ten hours a day treating patients at a local hospital, and then spent several more hours in the evenings seeing patients at the medical building. He and Harry both testified that they practiced medicine together, paying all of the expenses of the practice from a joint checking account. In 2006, Harry transferred ownership of the building to Stephen for a token payment of ten dollars. However, both doctors testified that Harry continued to maintain the building, because he was "handy." They both attested that Stephen did not charge rent to Harry or to the practice, there was no lease, and they paid jointly for the upkeep of the premises.
Plaintiff testified that Harry hired her and was the one who gave her direction in performing her job. Harry's name was on her W-2 forms. He also signed her paychecks. However, the checks were written on Harry and Stephen's joint checking account. Both of their names appeared on the paychecks.
At the time the accident occurred, the medical practice was covered by a policy of workers' compensation naming Harry and Stephen as the policy holders. The employee notice that accompanied the policy listed Harry and Stephen as the employers. The workers' compensation policy listed the same taxpayer identification number as the W-2 form. The premiums were paid from the doctors' joint checking account.
The same checking account was used to pay for a "business owners" liability policy, covering the medical office. The policy listed Harry and Stephen, and their wives, as the insureds. The policy described the "form of business" as a "medical office" and a "partnership." Harry and Stephen admitted in discovery that there were no partnership documents, although they both attested that they practiced medicine together.
At their depositions, both doctors described a medical practice marked by informality. They both testified that they had many geriatric patients. If the patients were not ambulatory, the doctors would sometimes go outside and examine the ...