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Estate of Kotsovska v. Liebman

Superior Court of New Jersey, Appellate Division

December 26, 2013

ESTATE OF MYROSLAVA KOTSOVSKA, by OLENA KOTSOVSKA, Administrator, Plaintiff-Respondent,
SAUL LIEBMAN, Defendant-Appellant.

Argued March 20, 2013

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4258-09.

Robert F. Cox argued the cause for appellant (McCreedy and Cox, attorneys; Mr. Cox, on the briefs).

George E. Spaneas of the New Hampshire bar, admitted pro hac vice, argued the cause for respondent (Smith, Stratton, Wise, Heher & Brennan, LLP, and Mr. Spaneas, attorneys; Gerald D. Wixted, and Mr. Spaneas, of counsel and on the briefs).

Before Judges Grall, Simonelli and Accurso.



Defendant Saul Liebman appeals from a $565, 806.37 final judgment in this wrongful death action, following a jury verdict in favor of plaintiff Estate of Myroslava Kotsovska (the estate), and from the denial of his motion for a new trial. Liebman contends that decedent was his employee, and thus the Workers' Compensation Act's (the Act) exclusivity bar, N.J.S.A. 34:15-8, prohibits her estate from maintaining this action. The central issue on appeal is whether the question of the decedent's status as an employee or independent contractor, which the jury determined adversely to Liebman, should have been decided in the Division of Workers' Compensation (the Division).

We conclude that the Division was the proper forum for resolution of that issue pursuant to Kristiansen v. Morgan, 153 N.J. 298 (1998), modified on other grounds, 158 N.J. 681 (1999). Because the Superior Court has concurrent jurisdiction to decide whether the decedent was an employee or independent contractor, however, that error would not alone require the course of this matter to be rerun. But as we also conclude that the jury instructions on the issue were seriously flawed, reversal and remand is required. Because we reject Liebman's remaining points of error, however, we affirm the jury's damages verdict and preserve it pending remand to the Division to determine decedent's employment status.

The basic facts of this tragic case are easily summarized. In September 2008, Liebman, then eighty-one years old, was living alone following the recent death of his wife. His daughter, Robin Ross, was making inquiries among her friends for someone who could move into her father's home, cook his meals and assist him in his daily activities. Decedent, a 59-year-old Ukrainian citizen on an extended visit with her daughter in New Hampshire, was referred to Ross for the role.[1]

Ross initially communicated with decedent, who spoke almost no English, through decedent's daughter. Decedent agreed to come to New Jersey to meet Ross and her father and, if the arrangements were suitable, to begin work immediately.

Decedent met with Ross and Liebman in Liebman's home, accompanied by her son-in-law who served as a translator. The parties agreed that decedent would move into Liebman's home and work seven days a week for one hundred dollars a day, which she would receive in cash. Decedent was responsible for preparing three meals a day, doing the laundry, performing light housekeeping, accompanying Liebman on errands, and assisting him with whatever tasks he required. Liebman walked with a cane and occasionally needed assistance on stairs or getting in or out of the car. Decedent was to also accompany Liebman if he chose to go out to eat, at his request.

The parties did not discuss whether decedent's visa authorized her to work in this country, which it did not, or whether decedent was to be Liebman's employee or considered an independent contractor. There was also no discussion as to the duration of the arrangement, although the parties did discuss the decedent returning to her daughter's home for the Christmas holiday. Decedent's son-in-law advised Ross that decedent was without health insurance, and that he and his wife would pay her medical bills if she got sick.

The parties met on October 21, 2008, and decedent began her duties immediately thereafter. On December 8, 2008, Liebman and decedent were running errands and stopped at the Millburn Diner for lunch. Decedent got out of the car and stood on the sidewalk while Liebman pulled into the parking space in front of her. As decedent stood on the sidewalk in front of a low patio wall, Liebman suddenly accelerated, driving the car over the parking block and onto the sidewalk. Liebman crashed the car into decedent, pinning her against the low wall. The accident severed decedent's left leg below the knee, resulting in her death nearly an hour later.

The estate filed a wrongful death action against Liebman in Superior Court. Liebman answered and asserted an affirmative defense of lack of subject matter jurisdiction, contending that exclusive jurisdiction was in the Division. Liebman subsequently filed a motion to dismiss on the same grounds. The court denied the motion and advised the parties that it would entertain a motion for summary judgment after the completion of discovery. If after ...

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