ERIC G. HANISKO, Plaintiff-Appellant,
BILLY CASPER GOLF MANAGEMENT, INC. and CRANBURY GOLF CLUB, LLC, Defendants-Respondents, and SKY CRANBURY, INC., Defendant
Argued May 29, 2014
Approved for Publication September 8, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-110-11.
Eric J. Ludwig argued the cause for appellant ( Stark & Stark, attorneys; Mr. Ludwig, of counsel and on the brief).
Joseph F. Skinner argued the cause for respondents ( Daly, Lamastra & Cunningham, attorneys; Mr. Skinner, of counsel and on the brief).
Before Judges SAPP-PETERSON, LIHOTZ and MAVEN. The opinion of the court was delivered by SAPP-PETERSON, P.J.A.D.
[437 N.J.Super. 353] SAPP-PETERSON, P.J.A.D.
Plaintiff appeals from the trial court order granting summary judgment to defendants, Billy Casper Golf Management, Inc. (BCGM) and Cranbury Golf Club, LLC (CGC), in this workplace injury case. We affirm.
BCGM is a corporation specializing in golf course management. It owns or operates more than 140 facilities in twenty-eight states. CGC is the owner of a 120-acre golf club (club) located in West Windsor. Plaintiff works as the superintendent of the club. He was hired in March 2008, after accepting a written February 27, 2008 offer of employment extended to him, on behalf of CGC and BCGM, by Colleen Suozzo, the club's general manager, to whom he reported directly. His employment package included the provision of housing at the club. On April 11, 2009, he fractured his ankle when he slipped and fell on what plaintiff alleges was a defectively-constructed wooden step in his residence.
On January 13, 2011, he filed a complaint against BCGM, CGC, and Sky Cranbury, Inc., alleging negligence. Defendants answered the complaint denying the allegations, asserting nine affirmative defenses, but did not raise the employer's immunity defense under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to-128, [437 N.J.Super. 354] specifically, N.J.S.A. 34:15-8. Two months later, plaintiff filed a workers' compensation claim petition against BCGM alleging he sustained a work-related injury as a result of his fall, which arose out of and in the course of his employment. BCGM's insurance carrier filed an answer
denying compensability and asserting plaintiff's injury was not work-related.
Upon completion of discovery, defendants moved for summary judgment, arguing plaintiff's joint employment with CGC and BCGM barred the court's jurisdiction over plaintiff's personal injury complaint. During oral argument, plaintiff's counsel objected to the court's consideration of a signed version of the written offer of employment extended to plaintiff by Suozzo. The signed copy of the letter agreement was not turned over to plaintiff's counsel until two months following the close of discovery and it was unaccompanied by a certification pursuant to Rule 4:17-7.
Judge Paul Innes granted summary judgment to defendants, finding that " either under the special employers' test or the joint employer test, on either test plaintiff was . . . [an] employee of both [BCGM and CGC]." The court, although recognizing the fully executed letter agreement of employment was not provided until after the close of discovery, found that " the fact of the matter is that the written agreement that was provided and shown [during depositions] to both Mr. Hanisko . . . and Ms. Suozzo . . . was exactly the same as the signed agreement that was provided to plaintiff when it was provided." Consequently, Judge Innes reasoned:
Under the circumstances, M[r]. Hanisko authenticated the document -- that's the letter that was provided to Mr. Hanisko, and, in fact, Mr. Hanisko worked in accordance with the offer of employment that was submitted to him by way of the agreement. So I'm not disturbed by the fact that only the signed agreement was given at the later time. The actual unsigned agreement had been provided [to] the plaintiff, and I don't find any prejudice to plaintiff by allowing the unsigned agreement in this particular matter.
Finally, Judge Innes rejected plaintiff's argument that defendants waived the statutory defense under the Act because they did not raise this defense until summary judgment. The present appeal followed.
[437 N.J.Super. 355] On appeal, plaintiff raises several points for our consideration. First, plaintiff contends defendants were judicially estopped from raising the exclusivity provisions of the Act. Second, plaintiff urges defendants waived their employer immunity defenses. Third, plaintiff asserts there was no express contract of employment between plaintiff and either CGC or BCGM. Fourth, plaintiff argues there was no implied contract of employment with CGC. Finally, plaintiff contends his third-party premises liability action was properly venued in Superior Court pursuant to N.J.S.A. 34:15-40.
We have considered these points in light of the record, briefs submitted, arguments advanced, and applicable legal principles, and we reject each of the points advanced. We affirm substantially for the reasons expressed by Judge ...