JOHN DUTCHER VS. PEDRO PEDEIRO(L-4321-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1088-16T3

JOHN DUTCHER,

Plaintiff-Appellant,

v.

PEDRO PEDEIRO and BLACK
ROCK ENTERPRISES, LLC,

Defendants-Respondents.

________________________________

Submitted October 25, 2017 – Decided November 22, 2017

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
4321-15.

Stathis & Leonardis, LLC, attorneys for
appellant (Marc D. Portlock, on the briefs).

O'Toole Fernandez Weiner Van Lieu, LLC,
attorneys for respondents (Cindy M. Yu, on the
brief).

PER CURIAM

Plaintiff John Dutcher, a police officer, appeals from the

summary judgment dismissal of his personal injury complaint and

an order denying his motion for reconsideration. A vehicle struck
and injured plaintiff while he was directing traffic at a

construction site. The contractor, defendant Black Rock

Enterprises, LLC, owned the vehicle, and Black Rock's employee,

defendant Pedro Pedeiro, was driving it when the accident

occurred.1 The trial court concluded plaintiff was a special

employee of defendant and thus the Workers' Compensation Act's

exclusive remedy barred his personal injury claim.

The summary judgment motion record supported the facts

defendants set forth in their statement of material facts.

Plaintiff did not respond to them, so the facts were deemed

admitted. R. 4:46-2(b). The facts established an unrefuted prima

facie case that plaintiff was defendant's special employee. We,

therefore, affirm the summary judgment order and the order denying

reconsideration.

Ten months after plaintiff commenced this personal injury

action by filing a complaint, defendants moved for summary

judgment. The discovery end date would not expire for another two

months. Six days before defendants filed their motion, plaintiff

had scheduled depositions of himself, Pedeiro, and a

representative of Black Rock. The trial court decided defendants'

1
All further references of singular "defendant" are to Black Rock
only.

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summary judgment motion before the depositions were taken and two

days after the discovery end date.

Defendants filed with the summary judgment motion a statement

of material facts supported by the pleadings and an affidavit of

defendant's Managing Member. The facts establish that on the date

of the accident, defendant was performing work under a contract

with Middlesex County to provide milling services on county roads.

Defendant hired police officers through the Township of Woodbridge

to direct traffic during the time defendant was working on the

roads. On the date of plaintiff's accident, defendant's Managing

Member submitted a request to the Township for police officers to

provide Extra Duty Services at the construction site located at

the intersection of Woodbridge Center Drive and Plaza Drive. The

Managing Member's request specified "exactly how many officers[]

[and] patrol cars were needed, the time, location, and dates." In

her request, the Managing Member further specified "exactly what

services were required and what duties and responsibilities were

expected to be performed[.]" In response, plaintiff "was assigned"

to provide the requested Extra Duty Services at the intersection.

According to the Managing Member's affidavit, on the day of

the accident, plaintiff "reported to the [s]ite, accepted

instruction and direction, complied with [defendant's] rules,

requirements, and policies, in the performance of work on behalf

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of [defendant]." The Managing Member further averred that on the

date of plaintiff's accident, he "performed work on behalf of

[defendant] at [defendant's] request, and under [defendant's]

direction and control" from 8:00 a.m. until 4:00 p.m. During that

time, plaintiff reported to defendant's supervisor. Further,

defendant's foreman directed plaintiff as to where and how to

direct traffic. According to the Managing Member, defendant "had

sole control over the details of the work performed by [plaintiff,]

. . . [and] would instruct [p]laintiff where and how to direct

traffic, depending on the progress and status of the milling

work[.]" The Managing Member asserted the Township "maintained

no control, direction, or supervisory authority over [p]laintiff's

work at the [s]ite." Further, "[defendant] had the power and

authority to recall [plaintiff] for his services, or discontinue

his services if they were no longer needed or were found by

[defendant] to be unsatisfactory." Defendant admitted Pedeiro was

the employee in the construction vehicle with a "bucket" that

allegedly struck plaintiff.

Defendant reimbursed the Township for plaintiff's wages. The

Managing Member averred in an affidavit the Township would send

defendant invoices enumerating the hours plaintiff worked "along

with the fees and hourly wages charged." Defendant would then pay

the Township for plaintiff's services.

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 In addition to the pleadings, defendants submitted a letter

from the third party administrator for Central Jersey Joint

Insurance Fund, the workers' compensation program of which the

Township was a member. The third party administrator sent the

letter to defendant's insurer. The letter stated that because

plaintiff "was working on behalf of both the Township of Woodbridge

and [defendant], [the] matter [was] a dual employment case of

which [defendant was] responsible for 50% of all paid on the case."

On appeal, plaintiff makes substantive and procedural

arguments. Substantively, plaintiff contends the facts defendant

established did not support the trial court's finding that

plaintiff was a special employee of defendant; and the court

erroneously relied on defendants' misstatements concerning payment

of plaintiff's workers' compensation benefits in making its

determination. Plaintiff asserts the court made procedural errors

by accepting defendants' "material statement of facts" rather than

a "statement of material facts" required by Rule 4:46-2(a); by

deciding the motion without insisting defendants provide the

Township's position on plaintiff's employment classification; and

by deciding the motion before discovery was complete.

Plaintiff's procedural arguments are without sufficient merit

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

We note, however, that plaintiff himself could have readily refuted

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most of the material facts developed by defendants, particularly

those directly bearing on who plaintiff reported to while working

at the construction site, who supervised him, and who determined

the circumstances under which he worked while directing traffic

at the construction site.

Appellate courts "review[] an order granting summary judgment

in accordance with the same standard as the motion judge." Bhagat

v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). We "review

the competent evidential materials submitted by the parties to

identify whether there are genuine issues of material fact and,

if not, whether the moving party is entitled to summary judgment

as a matter of law." Ibid. (citing Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial

court's determination that a party is entitled to summary judgment

as a matter of law is not entitled to any "special deference," and

is subject to de novo review. Cypress Point Condo. Ass'n v. Adria

Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).

We review a trial court's denial of a motion for

reconsideration under an abuse of discretion standard. Davis v.

Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010) (citing

Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div.

1997)), aff'd in part and rev'd in part on other grounds, 209 N.J.

269, 277 (2012).

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 The New Jersey Workmen's Compensation Act, N.J.S.A. 34:15-1

to -69.3, provides employees with guaranteed recovery from their

employers for workplace injuries, in exchange for a waiver of the

right to sue their employer. N.J.S.A. 34:15-8. For purposes of

workers' compensation, a worker may have two employers, "both of

whom may be liable in compensation." Hanisko v. Billy Casper Golf

Mgmt., 437 N.J. Super. 349, 360 (App. Div. 2014) (quoting

Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div.

1988), certif. denied, 115 N.J. 59 (1989)). In such situations,

recovery of workers' compensation from one employer "bars the

employee from maintaining a tort action against the other for the

same injury." Ibid. (quoting Anthenuisse, supra, 229 N.J. Super.

at 402).

A "special employment relationship" where the "special

employer" is also responsible for worker's compensation exists

"[w]hen a general employer lends an employee to a special

employer," and "(a) [t]he employee has made a contract of hire,

express or implied, with the special employer; (b) [t]he work

being done is essentially that of the special employer; and (c)

[t]he special employer has the right to control the details of the

work." Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430

(App. Div. 1967) (quoting 1A Larson, Workmen's Compensation

(1966), § 48.00, at 710 (now codified as 7 Lex K. Larson, Larson's

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Workers' Compensation § 67.01 (2017) [hereinafter Larson])). In

determining whether a special employee relationship has developed,

courts also consider "whether the special employer (1) pays the

lent employee's wages, and (2) has the power to hire, discharge

or recall the employee." Ibid. (citation omitted).

When a court weighs these five factors to determine whether

a special employment situation exists, "[n]o single factor is

'necessarily dispositive, and not all five must be satisfied in

order for a special employment relationship to exist.'" Walrond

v. Cnty. of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006)

(quoting Marino v. Ind. Crating Co., 358 F.3d 241, 244 (3rd Cir.

2004)). "Generally, however, it is believed that the most

significant factor is the third: whether the special employer had

the right to control the special employee." Ibid. (citing Volb

v. G.E. Capital Corp., 139 N.J. 110, 116 (1995)).

In the case before us, the undisputed facts on the motion

record, deemed admitted by virtue of plaintiff's non-response,

established the five factors. As to the first factor, though

defendant contracted directly with the Township for the assignment

of police officers for Extra Duty Services, "[t]he consent [for

contracting] may be implied from the employee's acceptance of the

special employer's control and direction" of the employee. Larson,

supra, § 67.02[3]. Furthermore, where an "employee 'knew he would

8 A-1088-16T3
be hired out to special employers, and accepted such employers

just as he accepted the general employer . . . [the employee]

intended to have two employers[.]'" Blessing, supra, 94 N.J.

Super. at 434 (quoting Chickachop v. Manpower, Inc., 84 N.J. Super.

129, 137 (Law Div. 1964)). Here, plaintiff signed up for Extra

Duty Services knowing the Township would hire him out to a second

employer and would expect him to perform his duties for that

employer. Therefore, as asserted by defendants, "[p]laintiff

reported to the [s]ite in acceptance of the assignment as an Extra

Duty Officer to perform work on behalf of [defendant]."

The second factor requires "the work being done is essentially

that of the second employer." Larson, supra, § 67.01[1].

Defendants asserted "[p]laintiff directed traffic . . . for

[defendant's] benefit." In that regard, when requesting officers

from the Township, defendant had "specified exactly how many

officers[] [and] patrol cars were needed, the time, location, and

date[s]" they were needed, and "exactly what services were required

and what duties and responsibilities were expected to be

performe[d]." Plaintiff was directing traffic for the benefit of

defendant as defendant performed milling services on county roads.

The need for someone to direct traffic was directly related to

defendant's work, and as such is essentially the work of defendant.

See Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 453-54,

9 A-1088-16T3
458 (App. Div. 1989) (determining an off-duty police officer

assigned to work for a private business had dual employment with

the private business and the Police Department, even though his

assignment "was serving . . . private interest[s] as well as the

public interest").

The third and perhaps most significant factor is that the

special employer has the right to control the details of the work.

Here, according to defendants' undisputed statement of facts,

"[p]laintiff directed traffic in accordance with [defendant's]

request, directions, and for [defendant's] benefit. During this

assignment, [defendant] had sole control over the [p]laintiff with

respect to directions, instructions, and ability to discontinue

his services if they were no longer needed or were unsatisfactory."

Upon arrival at the site, plaintiff would check in with defendant's

supervisor. Defendant also "had a foreman on site who directed

[plaintiff] as to where and how to direct traffic." The directions

would "depend[] on the progress and status of the milling work

[being] performed[.]" These facts adequately demonstrate control

over plaintiff's work. While defendant may not have directly

controlled exactly how plaintiff chose to direct traffic,

defendant did have adequate control over when and where plaintiff

performed his services.

10 A-1088-16T3
 The next factor is whether the special employer "pays the

lent employee's wages[.]" Blessing, supra, 94 N.J. Super. at 430.

In this case, "[f]ollowing the completion of the assignment,

[defendant] paid [p]laintiff's wages indirectly through payment

of an invoice fee to the Township." Plaintiff argues this does

not satisfy the requirement that the special employer pay the

wages, because the special employer is paying the Township, who

later pays plaintiff. However, the special employer does not need

to directly pay the special employee for a special employment

relationship to exist. See Kelly v. Geriatric & Med. Servs.,

Inc., 287 N.J. Super. 567, 577 (App. Div.) (finding direct payment

would be more persuasive, but is not necessary for a finding of

special employment), aff'd 147 N.J. 42 (1996). Particularly

telling in this arrangement is the note at the bottom of the

invoices from the Township to defendant: "Please pay on time. The

officers do not get paid until I receive the payment from you."

Lastly, the special employer must have "the power to hire,

discharge or recall the employee" in order for there to be a

special employment relationship. Blessing, supra, 94 N.J. Super.

at 430. Defendant had such authority as to its project. Defendant

was able to "discontinue [plaintiff's] services if they were no

longer needed or were unsatisfactory."

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 Based on defendants' undisputed statement of material facts,

plaintiff was acting as a special employee of defendant at the

time of the accident. Because plaintiff recovered worker's

compensation benefits from the Township, plaintiff is barred from

seeking further recovery through suit against defendant.

Plaintiff places much significance on defendant's alleged

denial that he was an employee for purposes of workers'

compensation. Plaintiff alleges defendant has denied the

Township's claim for contribution in the workers' compensation

action. This is not material to the action before us. As

previously noted, in the context of this case, recovery of workers'

compensation from one employer (the Township) bars the employee

from maintaining a tort action against the other. Hanisko, supra,

437 N.J. Super. at 360.

The trial court properly granted defendants' summary judgment

motion on the record before it. The trial court also properly

denied plaintiff's motion for reconsideration. We agree with the

trial court that plaintiff's reconsideration motion was an attempt

to expand the summary judgment record and reargue the summary

judgment motion. The trial court did not abuse its discretion by

declining to consider on a reconsideration motion material that

plaintiff could have submitted in opposition to the summary

judgment motion.

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Affirmed.

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