Estate of Myroslava Kotsovska, by Olena Kotsovska

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5512-11T4

ESTATE OF MYROSLAVA KOTSOVSKA,
by OLENA KOTSOVSKA, Administrator,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

December 26, 2013
v.
APPELLATE DIVISION
SAUL LIEBMAN,

Defendant-Appellant.

_________________________________________

Argued March 20, 2013 - Decided December 26, 2013

Before Judges Grall, Simonelli and Accurso.

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).

The opinion of the court was delivered by

ACCURSO, J.A.D.
 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.

2 A-5512-11T4
 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

1
Decedent had apparently provided similar services to a New
Jersey family on an earlier visit.

3 A-5512-11T4
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.

4 A-5512-11T4
 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 hearing that motion the court concluded

that decedent was an employee, the matter would be transferred

to the Division.

Following discovery, Liebman filed a motion before another

judge to transfer the case to the Division. That judge denied

the motion because there was no claim pending in the Division

and the limitations period for filing a workers' compensation

petition had expired. Liebman's motion for reconsideration was

denied. Liebman moved again for reconsideration, this time

attaching a certification from his homeowner's insurance carrier

acknowledging the existence of workers' compensation coverage

and notice of the claim. The carrier conceded that the accident

arose out of the course of decedent's employment and agreed not

to raise a limitations defense to transfer of the claim. The

court again denied the motion. We denied Liebman's motion for

5 A-5512-11T4
leave to appeal. Liebman's subsequent motion for summary

judgment was also denied.

The case was tried over several days. The jury determined

that decedent was an independent contractor and awarded the

estate $300,000 for decedent's pain and suffering and $225,000

for her wrongful death. Liebman's motion for new trial was

denied. This appeal followed.

We conclude that this matter should have been transferred

to the Division for determination of decedent's employment

status. The Court in Kristiansen held that, although the

Superior Court and the Division have concurrent jurisdiction to

decide an exclusivity defense, primary jurisdiction is in the

Division where, as here, "no issue has been raised that the

Division cannot decide in a manner that is binding on all the

interested parties." Kristiansen, supra, 153 N.J. at 311.

The trial court rejected that Kristiansen controlled

because both it and Wunschel v. City of Jersey City, 96 N.J. 651

(1984), on which Kristiansen relied, involved situations, unlike

this one, in which there was no dispute that the deceased worker

was an employee covered by the Act. It noted the Kristiansen

Court emphasized that the Legislature did not intend workers who

had accepted the provisions of the Act, pursuant to N.J.S.A.

34:15-7, to have an election as to whether to pursue common-law

6 A-5512-11T4
tort remedies. Kristiansen, supra, 153 N.J. at 311-12.

Reasoning that decedent could not be deemed to have accepted the

provisions of the Act if she were not defendant's employee, as

her estate maintained, the trial court determined that the

Division's jurisdiction could not be considered exclusive while

a dispute existed over decedent's employment status. The court

thus concluded that the Superior Court "must have jurisdiction

to determine whether plaintiff is an employee," at least when

the plaintiff has not also filed a workers' compensation

petition.

We think that Wunschel and Kristiansen compel a different

result. In Wunschel a city police officer, Wunschel, was

accidently shot and killed by his on-duty partner, who was

picking Wunschel up at his second job to start their tour.

Wunschel, supra, 96 N.J. at 655-56. Wunschel's widow filed a

petition for workers' compensation benefits against both of

Wunschel's employers, and a wrongful death suit against them as

well as against Wunschel's partner. Id. at 656. The central

issue in both actions was whether Wunschel was working for the

City or his second employer when he was shot. Id. at 657. When

the case reached the Supreme Court, the Wunschel Court was

confronted with a situation in which the Division and the

Superior Court had reached the opposite result on that same

7 A-5512-11T4
factual issue. Id. at 658. In order to avoid such "illogical

inconsistenc[ies]" in the future, the Court determined to

"design a procedure to 'assure that a controversy, or its most

critical facets, will be resolved by the forum or body which, on

a comparative scale, is in the best position by virtue of its

statutory status, administrative competence and regulatory

expertise to adjudicate the matter.'" Kristiansen, supra, 153

N.J. at 309 (quoting Wunschel, supra, 96 N.J. at 664).

The Court decided that the best forum for "employment

issues" is the Division. Wunschel, supra, 96 N.J. at 664. The

Wunschel Court acknowledged, however, that the Division's

limited jurisdiction would on occasion make it impossible for

the Compensation Court to exercise jurisdiction over a party

whose participation was necessary to resolve all aspects of the

controversy, such as when the fellow-servant defense is

implicated and the fellow servant declines to intervene in the

Division proceeding. Id. at 664, 665-67. In such cases, the

Court recognized concurrent jurisdiction in the Superior Court

to decide the employment issues related to the fellow-servant

defense. Id. at 666.

The Court revisited the question of the concurrent

jurisdiction of the Division and the Superior Court in these

matters in Kristiansen. Kristiansen was employed by the State

8 A-5512-11T4
as a bridge operator. Kristiansen, supra, 153 N.J. at 302. He

was struck and killed by a motorist as he was leaving the bridge

at the end of his shift. Id. at 304. His widow filed both a

claim petition in the Division and a wrongful death action

against the State and the driver. Ibid. The trial court

rejected the State's exclusivity defense, concluding that it had

concurrent jurisdiction to decide whether Kristiansen was still

within the scope of his employment when he was run over on the

bridge. Id. at 302.

Describing the issue as "different from, yet related to,

the employment issue raised in Wunschel," the Kristiansen Court

held that although the Superior Court had concurrent

jurisdiction to decide whether Kristiansen was within the scope

of his employment at the time of his death, primary jurisdiction

over that question was in the Division. Id. at 313-14

(explaining that primary jurisdiction analysis requires

determining which of possible tribunals has predominant interest

in, and expertise to decide, disputed issue). The Court

determined that the Division's jurisdiction was primary because,

unlike in Wunschel, the Division could decide all aspects of the

controversy in a manner binding on all the interested parties,

and "[r]egardless of whether the employer admits or denies the

compensability of an accident, the Division is the forum best

9 A-5512-11T4
suited to decide whether the accident falls within the coverage

formula of the Act." Id. at 313.

Thus, although it is certainly true, as the trial court

noted, that both Wunschel and Kristiansen addressed the

compensability of the accidents that befell those workers and

not their status as employees,2 we think that distinction less

important than the Court's broader point that the Division is

"the forum best suited to decide employment issues," between the

Superior Court and the Division in a primary jurisdiction

analysis. Id. at 309, 313-14. Larson likewise questions the

soundness of hinging the primary jurisdiction of a compensation

board on the distinction between employment status and

compensability of the accident, 6 Lex K. Larson, Larson's

Workers' Compensation Law § 102.06 (Mathew Bender rev. ed. 2013)

(criticizing distinction on basis that employment status is more

"fundamental" than compensability as "very questionable"),

arguing that the Board is equally without jurisdiction to award

compensation in the absence of employment relation as injury in

the course of employment. Id. at § 130.07.

2
The precise question in Wunschel was whether the deceased
police officer was working as an employee of Jersey City's
police department or moonlighting for a private employer, or
both, at the time of his death. Wunschel, supra, 96 N.J. at
660. Accordingly, the question in that case is closely
analogous to the employment status issue presented in this
matter.

10 A-5512-11T4
 While the presence of other parties could, depending on the

circumstances, counsel against transfer to the Division,

Wunschel, supra, 96 N.J. at 666, here, because there was no such

impediment, Kristiansen compelled the transfer, 153 N.J. at 313.

Accordingly, we hold that because Liebman's exclusivity defense

turned on whether decedent was his employee or an independent

contractor, an issue over which the Division could enter a

binding judgment, and one which the Division was best suited "by

virtue of its statutory status, administrative competence and

regulatory expertise to adjudicate," id. at 309 (quoting

Wunschel, supra, 96 N.J. at 664), the trial court should have

transferred the case to the Division.

Because the Law Division had concurrent jurisdiction to

decide whether the decedent was an employee or independent

contractor, the failure to recognize the Division's primary

jurisdiction would not, standing alone, require the case to be

reversed. Kristiansen, supra, 153 N.J. at 318. We agree with

Liebman, however, that the instructions to the jury were

seriously flawed and clearly capable of producing an unjust

result, thus requiring reversal. R. 2:10-2.

The court charged the jury generally regarding the

distinctions between an employee and a general contractor with

11 A-5512-11T4
reference to a lengthy list of factors. Specifically, and by

way of example, the judge instructed that

hiring, payment of regularly weekly sum,
provision of tools, supplies of a workplace
and being terminable at will are factors
that weigh in favor of the employer/employee
relationship. Lack of payroll deductions,
payment in cash are factors that weigh
against the employer/employee relationship.

Determining whether an individual is an employee or an

independent contractor is often difficult and a recitation of

factors organized into "pro-employee and pro-independent

contractor lists is not particularly helpful" in accomplishing

the task. Marcus v. E. Agric. Ass'n, 58 N.J. Super. 584, 600

(App. Div. 1959) (Conford, J.A.D. dissenting), rev'g on dissent,

32 N.J. 460 (1960). Moreover, because the Act is socially

remedial legislation, "[t]he term 'employee' is to be defined

liberally in order to bring as many cases as possible within the

scope of the Workers' Compensation Act," even when the employee

is attempting to have himself excluded from its coverage. Sloan

v. Luyando, 305 N.J. Super. 140, 147 (App. Div. 1997).

The trial court's instructions focused only on defining

whether decedent was an employee based on the control test,

which is grounded in traditional master-servant principles. New

Jersey Prop.-Liab. Ins. Guar. Ass'n v. State, 195 N.J. Super. 4,

14 (App. Div.), certif. denied, 99 N.J. 188 (1984) (explaining

12 A-5512-11T4
the control test's four factors as the degree of control the

employer has the right to exercise, the method of payment, who

furnishes the equipment, and the right of termination). In

compensation cases, however, the Supreme Court has adopted an

additional "economic and functional" test, of which the

determinative criteria are "'not the inconclusive details of the

arrangement between the parties, but rather the extent of the

economic dependence of the worker upon the business he serves

and the relationship of the nature of his work to the operation

of that business.'" Id. at 10 (quoting Marcus, supra, 58 N.J.

Super. at 603 (Conford, J.A.D., dissenting)). The trial court

did not instruct the jury on this relative nature of the work

test, although highly relevant here as decedent would appear to

have been entirely economically dependent on Liebman.

In addition, the trial court's instruction that the lack of

payroll deductions and payment in cash are factors weighing

against a finding of employment was incomplete and misleading.

Although they are obvious factors suggesting independent

contractor status, we acknowledged their reduced importance in

this context more than fifty years ago. Brower v. Rossmy, 63

N.J. Super. 395, 405-06 (App. Div. 1960) (noting that factor of

lack of payroll deductions for withholding taxes was de-

emphasized in Congleton v. Pura-Tex Stone Corp., 53 N.J. Super.

13 A-5512-11T4
282, 290 (App. Div. 1958), certif. denied, 34 N.J. 65 (1961)).

We have cautioned that these factors, included in the control

test, must be viewed critically in light of Larson's

acknowledgment of the desire on the part of some "employers to

avoid both the financial cost and the bookkeeping and reporting

inconvenience that goes with workmen's compensation,

unemployment compensation, social security and the like."

Hannigan v. Goldfarb, 53 N.J. Super. 190, 205-06 (App. Div.

1958) (quoting Larson, supra, §§ 43.51, 45.10) (finding taxi

driver to be "employee" for purposes of the Act despite official

title of independent contractor).

Their inclusion by the trial judge without further

explanation, part of a larger failure to tailor the specifics of

the court's charge to the facts of the case, combined with the

absence of an instruction on the relative nature of the work

test, resulted in a charge that did not adequately convey the

law and was clearly capable of producing an unjust result. Sons

of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997).3

3
Although Liebman lodged several objections to the court's
charge, the failure to include the relative nature of the work
test and the instruction on the effect of the cash payments and
lack of withholding were not among them. Nevertheless, we are
satisfied that they are appropriately noticed under the plain
error doctrine. Ewing v. Burke, 316 N.J. Super. 287, 293 (App.
Div. 1998) (explaining that under the plain error rule, even
when counsel fails to object to jury instructions, "a charge
(continued)

14 A-5512-11T4
 Turning to the issue of damages, Liebman contends that the

court's improper judicial notice of decedent's conscious pain

and suffering resulted in an unjustified award on her survival

claim. He also contends that because the Division should have

decided whether decedent was an employee or independent

contractor, the jury's entire damages verdict must likewise be

set aside. We disagree.

The purpose of taking judicial notice is to save time and

promote judicial economy by dispensing with the necessity of

proving facts that cannot be seriously disputed and are

generally or universally known. State v. Silva, 394 N.J. Super.

270, 275 (App. Div. 2007). There is no dispute that decedent

did not die instantaneously. As counsel and the court were

discussing the court's introductory remarks to the jurors in

anticipation of voir dire, Liebman stipulated to negligence and

sought to preclude details of the accident being presented to

the jurors. Plaintiff objected as such details were relevant to

the estate's survival claim. That led to the following exchange

between defense counsel and the court.

[DEFENSE COUNSEL]: [The decedent] was
conscious before but as soon as the accident
occurred, we have no idea. That is an area

(continued)
which misleads the jury will require a reversal and a new
trial").

15 A-5512-11T4
 for expertise unless the court can take
judicial notice of that. I don't believe
the court can.

THE COURT: I'll take judicial notice that
anybody who is conscious and gets their leg
traumatically amputated, suffered pain.

"[F]acts that can be reasonably questioned or disputed may

not be judicially noticed." Ibid. Accordingly, the trial judge

should not have taken judicial notice of decedent's conscious

pain and suffering as a result of the accident, which he did.

That error, however, was harmless as plaintiff developed ample

evidence from both Liebman, as well as a man who stopped to

help, that decedent appeared conscious for several minutes

following the accident, her eyes were open, she was breathing

laboriously, murmuring or groaning, and appeared to be trying to

respond to those speaking to her. Smith v. Whitaker, 160 N.J.

221, 236 (1999) (noting New Jersey allows recovery for pain and

suffering when it can be shown that decedent survived her

injuries, "however briefly"). Accordingly, we reject Liebman's

challenge to the jury's award for pain and suffering on that

ground.

At oral argument, we asked the parties to brief their

positions on whether the jury's verdict on damages could stand

were we to remand the question of decedent's employment status

to the Division and it were to conclude that decedent was an

16 A-5512-11T4
independent contractor. Liebman contends that the jury's

damages verdict must be set aside in that event because the

verdict "was tainted by evidence and testimony of witnesses

which the jury should never have been exposed to." In essence,

Liebman posits that the jury may have punished him for appearing

to have failed to provide decedent with the benefits of

employment during her life then seeking the shelter of the Act

once she was dead.

The proofs would certainly be somewhat different in a trial

limited to damages, but that alone is insufficient to set aside

the jury's damages verdict. Truchan v. Sayreville Bar & Rest.,

Inc., 323 N.J. Super. 40, 53 (App. Div. 1999) (preserving a

damages award pending a new trial on liability despite

reversible error because "the liability issues and the damages

issues were fairly separable"); Showalter v. Barilari, Inc., 312

N.J. Super. 494, 515-16 (App. Div. 1998) (remanding for a new

trial as to liability only as "none of the errors identified

impacted on the damage verdict"). Except with regard to the

claim as to judicial notice, which we have rejected, Liebman

does not claim that the damages verdict is excessive, and we do

not find it so. Jastram v. Kruse, 197 N.J. 216, 228 (2008)

(explaining that damages awards should be set aside only upon a

17 A-5512-11T4
finding of manifest miscarriage of justice). Accordingly, we

preserve it pending remand to the Division.

We have considered Liebman's remaining arguments and

determined that they are not of sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

To summarize, we reverse the judgment on liability only and

remand the matter to the Division to determine whether the

decedent was defendant's employee or performed services for him

as an independent contractor. The Division shall thereafter

transfer the matter to the Law Division, which shall, in

accordance with the Division's determination of decedent's

employment status, either reinstate the judgment in favor of the

estate or dismiss the matter with prejudice in accordance with

this opinion.

Affirmed in part, reversed in part, and remanded for

further proceedings. We do not retain jurisdiction.

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