Glen J. Heuman v. Wayne Heuman

NOT FOR PUBLICATION WITHOUT THE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-1593-21

GLEN J. HEUMAN and
DONNA HEUMAN, husband
and wife,

Plaintiffs-Appellants,

v.

WAYNE HEUMAN, WAYNE
HEUMAN MASONRY, DEEJON
BUILDERS LLC, and TODD
LOUIS MASTROCOLA, SR.,

Defendants-Respondents.
_____________________________

Argued November 14, 2023 – Decided December 11, 2023

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2951-19.

Bard L. Shober argued the cause for appellants (Cooper
Levenson, PA, attorneys; Jennifer B. Barr and Bard L.
Shober, on the briefs).

Linda A. Olsen argued the cause for respondents
Wayne Heuman and Wayne Heuman Masonry (Ronan,
 Tuzzio & Giannone, PC, attorneys; Linda A. Olsen, on
the brief).

PER CURIAM

Plaintiffs Glen Heuman and his wife Donna Heuman appeal from a

January 10, 2022 Law Division order that granted summary judgment to

defendants Wayne Heuman 1 and Wayne Heuman Masonry (WHM) and

dismissed plaintiffs' negligence-based complaint against WHM.2 Before us,

plaintiffs principally argue the court erred in concluding their claims were

barred by the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -147,

because defendants failed to obtain workers' compensation insurance coverage

and consequently should not be afforded the protections under the WCA.

Plaintiffs also contend the court improperly granted defendants'

application because the motion record contained genuine issues of material fact

as to whether defendants knew their conduct was substantially certain to cause

Glen's injuries, thus permitting a direct claim against WHM under Laidlow v.

1
As several parties to the matter share the same surname, we refer to them by
their first names, intending no disrespect.
2
After a proof hearing, the court awarded plaintiffs a judgment against Deejon
Builders, LLC, who did not enter an appearance, and granted Todd Louis
Mastrocola's unopposed motion for summary judgment. Deejon and Mastrocola
are not parties to this appeal.
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Hariton Mach. Co., 170 N.J. 602 (2002). After considering plaintiffs' arguments

against the record and applicable legal principles, we reject them and affirm.

I.

We discern the following facts from the summary judgment record and

consider them in a light most favorable to plaintiffs because they are the parties

against whom summary judgment was entered. Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).

In December 2017, Deejon, a general contracting company, entered into

an agreement with property owner Mastrocola to build a new home. Deejon

retained WHM, which is owned and operated by Glen's cousin Wayne, as a

contractor to perform masonry work. Although Wayne primarily worked alone,

at times he would hire Glen to assist with masonry jobs. When Glen worked

these sporadic jobs, he was compensated in cash and his employment was never

formally recorded.

After securing the contract with Deejon, Wayne contacted Glen to assist

with the construction and Glen worked onsite on February 13 and 14, 2018.

During those two days, Glen mixed mortar and grout for the foundation of the

home using a mortar mixer, which Wayne modified due to a missing recoil

spring. To start the mixer in its altered state, the operator had to remove the

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protective cover, wrap a pull cord with a handle around a pulley section of the

machine and tug, similar to a lawnmower.

Glen used the mixer in this fashion without incident on February 13, 2018,

and approximately fifteen to twenty times before lunch the following day. After

lunch, however, when Glen attempted to start the mixer using the modified

system, the pull cord became caught in the machine's rotating motor and its

handle struck him in the eye.

Glen was immediately transported to a nearby hospital and treated for

fractures in his right orbital lobe as well as the rupture of the globe of his right

eye. He underwent two surgeries, ultimately resulting in the removal of the right

eye and his permanent need for a prosthetic.

Due to his sustained injuries, Glen filed a workers' compensation petition,

although it is unclear from the record when he filed the application or its

disposition. In November 2019, plaintiffs filed their initial complaint against

defendants, which they later amended in October 2020, sounding in negligence.

In response, defendants argued plaintiffs' claims were barred by the WCA.

The parties engaged in discovery, including the depositions of Glen and

Wayne. Glen testified he assisted Wayne at approximately five masonry jobs,

and most of them involved mixing mortar. He affirmed he used Wayne's

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modified mixer on those other occasions without incident. Glen also testified

that Wayne never instructed him on how to use the modified machine, but

conceded he was familiar with use of similar modified machines from his prior

experience in masonry.

Further, Glen admitted he was not wearing safety glasses when he was

operating the mixer, although he was aware that it would be proper protocol to

do so. Glen also testified Wayne indicated to him that he possessed insurance,

although Glen did not request proof of insurance, or inquire what specific

insurance Wayne purchased.

At his deposition, Wayne testified he was unaware of the statutory

requirement to obtain workers' compensation insurance at the time of the

incident. Specifically, he explained he "mostly worked by [himself]" and

therefore did not understand "the sense of [him] having workman's comp if [he

was] only covering [himself]." When asked about his modification to the mixer,

Wayne testified that wrapping the cord to start the machine in that manner was

common practice in the industry, and further stated he had seen this solution for

similarly broken machines during his thirty-year tenure in the business.

During the discovery period, the parties also provided their own expert

reports regarding the incident. Defendants' expert, George H. Pfreunschuh, P.E.,

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concluded Glen's injuries were not "attributable to an intentional act" by

defendants. Specifically, Pfreunschuh explained that although the machine's

missing recoil technically constituted an OSHA violation, Glen's and Wayne's

deposition testimonies established there was a "long-standing industry practice"

to operate mortar mixers in this fashion. He similarly concluded there was not

a substantial certainty the modification of the mixer would cause Glen's injuries,

again based on the industry practice and because Glen previously used the

machine in this manner "so many, many times before" without incident.

Plaintiffs submitted an expert report by Brian E. Beatty, P.E. His

evaluation, however, solely focused on "the impact of Glen . . . being struck in

his eye with the . . . mortar mixer," and did not offer an opinion on whether

defendants' actions constituted an intentional act, or whether there was a

substantial certainty they would cause Glen's injuries. Specifically, Beatty

opined, depending on the amount of torque generated by the mixer at the time

of impact, the speed at which the handle struck Glen in the eye ranged from 13.7

mph to 114.5 mph.

In December 2021, defendants moved for summary judgment, arguing

plaintiffs' claims were barred by the WCA because Glen was defendants'

employee and defendants' modification of the machine did not qualify as an

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intentional wrong. In opposition, plaintiffs contended their claims were not

barred under the statute because Glen was considered a casual employee, and

defendants failed to obtain the required workers' compensation insurance

coverage. Further, plaintiffs argued summary judgment was inappropriate as

there was at least a genuine issue of material fact as to whether defendants knew

the alteration of the mortar mixer was substantially certain to result in Glen's

injuries.

After considering the parties' submissions and oral arguments, the court

granted defendants' motion for summary judgment, and dismissed plaintiffs'

complaint with prejudice. It detailed its reasoning in a written opinion.

First, the court determined there was no genuine issue of material fact

regarding Glen's status as defendants' employee, based on his own certification

contained in his workers' compensation petition, his lack of other employment,

and his frequent, though sporadic, work for defendants. The court further noted

"the subject work was not accidental."

The court also determined that, under Laidlow, 170 N.J. at 623, there was

no genuine factual dispute "that movant's actions by not having a cover on the

mortar mixer were substantially certain to result in plaintiff's injuries," as "no

reasonable jury could find these facts created substantial certainty that plaintiff

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would be injured in the manner asserted." In support, it noted the absence of

prior OSHA violations against defendants involving the machine, Glen's

concession that starting the mixer without a protective cover in the manner done

on site "was fairly standard in the industry," and Glen's previous use of the

modified mixer "many times" without injury.

With respect to defendants' failure to carry necessary workers'

compensation insurance, the court determined this fact was not "dispositive to

permit plaintiff to assert a third-party negligence claim," as it did not constitute

an "exception to the workers' compensation bar." It supported this conclusion

by relying on the existence of the Uninsured Employers' Fund (the Fund), which

"was intended to remedy this situation as to compensability" and also noted

N.J.S.A. 34:15-120.1 and 120.9 allowed for injured workers to seek recovery

against non-compliant employers for damages not covered by the Fund.

Although the court acknowledged the seriousness and permanence of

plaintiff's injury, as well as the effect of defendants' failure to carry the required

insurance, it reasoned that based on the "current status of the law," the court was

"constrained" to grant defendants' motion for summary judgment. This appeal

followed.

II.

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 Plaintiffs initially argue because defendants failed to purchase workers'

compensation insurance, the court erred in concluding their claims were barred

under the WCA. As such, plaintiffs contend defendants should not be permitted

to benefit from the WCA's trade-off, which ensures employee compensation for

workplace injury while shielding employers from common-law negligence

liability, due to defendants' "flagrant disregard" of the WCA's insurance

requirement.

Plaintiffs claim the Fund inadequately compensates Glen because it does

not afford recovery for a permanent disability. As an award for permanent injury

would have been possible had defendants obtained workers' compensation

insurance, plaintiffs argue defendants cannot be permitted to "now hide behind

the . . . bar [of common-law suit] to avoid liability" in contravention of the

WCA's intended purpose of protecting employees. Further, even assuming the

parties are bound by the WCA, plaintiffs assert defendants' "breach of [their]

duty to provide compensation [to Glen], prevents [defendants] from enjoying

. . . immunity from common-law negligence."

Next, plaintiffs argue there is a genuine issue of material fact "as to

whether [defendants] acted with knowledge that operating the rigged mortar

mixer without a protective guard was substantially certain to result in [Glen]'s

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injuries" and accordingly, summary judgment was improper under Laidlow, 170

N.J. at 623.

Finally, as best we can discern, plaintiffs argue they should be permitted

to bring their negligence claims against defendants as they are further inhibited

from receiving compensation from defendants' commercial general liability

(CGL) policy. According to plaintiffs, because defendants "could [not] satisfy

a judgment to remedy the total loss of one eye" allowing their negligence claims

against defendants "is the only viable means of recovery for his serious,

permanent injury." We disagree with all these arguments.

We review the disposition of a summary judgment motion de novo,

applying the same standard used by the motion court. Townsend v. Pierre, 221

N.J. 36, 59 (2015). Like the motion court, we view "the competent evidential

materials presented . . . in the light most favorable to the non-moving party, [and

determine whether they] are sufficient to permit a rational factfinder to resolve

the alleged disputed issue in favor of the non-moving party." Town of Kearny

v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill, 142 N.J. at 540); see also R.

4:46-2(c). If "the evidence 'is so one-sided that one party must prevail as a

matter of law,'" courts will "not hesitate to grant summary judgment." Brill, 142

N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

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 III.

The WCA provides an exclusive remedy for injuries sustained in an

"accident arising out of and in the course of employment." N.J.S.A. 34:15 -7.

See also N.J.S.A. 34:15-8. "We have long recognized that [the WCA] is

remedial legislation and should be given liberal construction in order that its

beneficent purposes may be accomplished." Kocanowski v. Township of

Bridgewater, 237 N.J. 3, 10 (2019) (alteration in original) (quoting Estate of

Kotsovska v. Liebman, 221 N.J. 568, 584 (2015)).

"For more than a century, the [WCA] has provided employees injured in

the workplace medical treatment and limited compensation 'without regard to

the negligence of the employer.'" Vitale v. Schering-Plough Corp., 231 N.J.

234, 250 (2017) (quoting Estate of Kotsovska, 221 N.J. at 584). It has been

described as a "historic 'trade-off,'" Laidlow, 170 N.J. at 605, where the

employer "assumes an absolute liability[,] [but] gains immunity from common -

law suit, even though he [may] be negligent, and is left with a limited and

determined liability in all cases of work-connected injury," Vitale, 231 N.J. at

250 (first alteration in original).

The statute imposes a requirement on employers to properly compensate

injured employees, and to carry workers' compensation insurance. N.J.S.A.

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34:15-71 to -72; N.J.S.A. 34:15-79(a). Despite these mandates, the statute also

addresses scenarios, like the one involved here, in which an employer fails to

purchase the mandated coverage or refuses to compensate its injured employees.

Specifically, N.J.S.A. 34:15-120.1(a) establishes the Fund "to provide for

the payment of awards against uninsured defaulting employers who fail to

provide compensation to employees or their beneficiaries in accordance with the

provisions of the workers' compensation law," and is subrogated to the rights of

the employee to the extent of any payment, N.J.S.A. 34:15-120.5. The Fund

allows for recovery of medical bills and temporary disability benefits but does

not allow for recovery of permanent disability benefits. See Macysyn v.

Hensler, 329 N.J. Super. 476, 479 (App. Div. 2000); Bashir v. Comm'r, 313 N.J.

Super. 1, 3 (App. Div. 1998); N.J.S.A. 34:15-120.2.

Even so, for costs which are deemed compensable under the WCA but are

not recoverable by the Fund, the statute authorizes an employee to bring an

action against their employer "to recover all or part of any damages and costs

sustained by the employee," N.J.S.A. 34:15-120.9. See also Macysyn, 329 N.J.

Super. at 483; Sroczynski v. Milek, 396 N.J. Super. 248, 258 (App. Div. 2007).

In addition to this avenue of recovery, employers "who fail[] to provide the

protection prescribed in [the WCA] . . . shall be guilty of a disorderly persons

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offense and, if the failure, misrepresentation or provision of false, incomplete or

misleading information is knowing, shall be guilty of a crime of the fourth

degree." N.J.S.A. 34:15-79(a).

We initially disagree with plaintiffs' argument the issues presented are

matters of first impression, or a situation not contemplated by the Legislature.

The purpose of the WCA is to provide for an "exclusive remedy" for employees'

injuries obtained in the course of their employment. N.J.S.A. 34:15-7; Kibler v.

Roxbury Bd. of Educ., 392 N.J. Super. 45, 47 (App. Div. 2007). In its effort for

the WCA to provide this singular avenue of recovery, the Legislature

contemplated instances in which employers would either fail to provide

coverage or refuse to compensate their employees in accordance with the statute.

Indeed, this is apparent in the creation of the Fund, N.J.S.A. 34:15-120.1(a), as

well as the ability to bring both civil and criminal suit against employers who

fail to provide the statutorily mandated coverage, N.J.S.A. 34:15-120.9;

N.J.S.A. 34:15-79(a).3

3
We acknowledge, as recent commentators have explained, the practical
difficulties employees often face when pursuing claims against the Fund or
uninsured employers. Christopher J. Keating & Mark R. Natale, Uninsured
Employers Should No Longer Receive the Benefits of the Exclusive Remedy
Provision of the Workers' Compensation Act, 342 N.J. Lawyer 44, 46 (2023).
We remain convinced, however, that any substantive changes to the WCA must
originate from the Legislature.
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 IV.

Second, relying principally on Laidlow, 170 N.J. at 602, plaintiffs argue

the court erred in granting defendants' motion for summary judgment because

the motion record demonstrated a genuine issue of material fact with respect to

defendants' knowledge that their conduct was substantially certain to result in

Glen's injuries and whether the circumstances here were beyond what the

Legislature intended the WCA to immunize.

As to defendants' conduct, plaintiffs contend defendants' actions were

"substantially certain to result in [Glen's] injuries" based on Beatty's expert

report and Wayne's awareness that operation of the altered mixer required

operation "without a protective guard," which constituted an OSHA violation.

With respect to the context prong, plaintiffs argue defendants' refusal to replace

broken machinery is "not the standard or appropriate" industrial practice and the

use of a broken mixer, without its protective guard, is beyond what the

Legislature sought to immunize under the WCA. Again, we disagree.

As noted, the WCA provides the exclusive remedy for injuries arising out

of and in the course of employment, and bars common law tort claims for such

injuries "except for intentional wrong." N.J.S.A. 34:15-8. To demonstrate an

intentional wrong, the employee need not demonstrate "a subjective desire to

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harm." Laidlow, 170 N.J. at 613. Rather, they must satisfy a two-prong test

involving the employer's conduct and "the context in which that conduct takes

place." Id. at 614 (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J.

161, 179 (1985)). Courts have found an employer's intentional wrong "in only

rare and extreme factual circumstances." See Kibler, 392 N.J. Super. at 52-53.

Under the conduct prong, the employee must "establish the employer

knew that its actions were substantially certain to result in injury or death to the

employee." Hocutt v. Minda Supply Co., 464 N.J. Super. 361, 375 (App. Div.

2020) (citing Millison, 101 N.J. at 178-79). Notably, recklessness and gross

negligence are insufficient to meet this standard. Van Dunk v. Reckson Assocs.

Realty Corp., 210 N.J. 449, 452 (2012). As the Court explained, "the dividing

line between negligent or reckless conduct on the one hand and intentional

wrong on the other must be drawn with caution, so that the statutory framework

of the [WCA] is not circumvented simply because a known risk later blossoms

into reality." Hocutt, 464 N.J. Super. at 375 (quoting Millison, 101 N.J. at 178).

In addition, to satisfy the context prong, the employee must demonstrate

"the resulting injury and the circumstances of its infliction were more than a fact

of life of industrial employment and plainly beyond anything the Legislature

intended the WCA to immunize." Hocutt, 464 N.J. Super. at 375 (citing

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Millison, 101 N.J. at 178-79). This inquiry is purely a question of law for the

court. Laidlow, 170 N.J. at 623. Therefore, "if the substantial certainty standard

presents a jury question and if the court concludes that the employee's

allegations, if proved, would meet the context prong, the employer's motion for

summary judgment should be denied; if not, it should be granted." Ibid.

The Court's consideration involves "the totality of the facts contained in

the record." Laidlow, 170 N.J. at 623-24. Generally, "the same facts and

circumstances" are relevant to both prongs of the test. Mull v. Zeta Consumer

Prods., 176 N.J. 385, 390 (2003) (quoting Laidlow, 170 N.J. at 623). Our

Supreme Court in Van Dunk noted certain commonalities among cases in which

it found an intentional wrong: "Millison, Laidlow, Crippen[ v. Cent. Jersey

Concrete Pipe Co., 176 N.J. 397 (2003)], and Mull . . . all involved the

employer's affirmative action to remove a safety device from a machine, prior

OSHA citations, deliberate deceit regarding the condition of the workplace [or]

machine . . . knowledge of prior injury or accidents, and previous complaints

from employees." Van Dunk, 210 N.J. at 471.

The Court also stressed it is not a "per se rule that an employer's conduct

equates with an 'intentional wrong' within the meaning of [the WCA] whenever

that employer removes a guard or similar safety device from equipment or

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machinery, or commits some other OSHA violation." Laidlow, 170 N.J. at 622-

23. Conversely, "the absence of a prior accident does not preclude a finding of

an intentional wrong." Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397,

399 (2003) (quoting Laidlow, 170 N.J. at 621). As we noted in Bove v.

AkPharma Inc., 460 N.J. Super. 123, 142-43 (App. Div. 2019), "in addition to

violations of safety regulations or failure to follow good safety practice, an

intentional wrong will be found when it is accompanied by something more,

such as deception, affirmative acts that defeat safety devices, or a willful failure

to remedy past violations."

For example, in Laidlow, the Court found an intentional wrong when an

employee was seriously injured by a rolling mill from which the employer had

removed the safety mechanism, replacing it only during OSHA inspections. 170

N.J. at 608, 622-23. The Court noted the employer had ignored employee

requests to replace the safety guard following two incidents where employees'

hands had almost been pulled into the machine. Id. at 608. The Court concluded

a jury question existed on the employer's knowledge of a substantial certainty

of injury, based on "the prior close-calls, the seriousness of any potential injury

that could occur, [the employee]'s complaints about the absent guard, and . . .

[the employer's] deliberate and systematic deception of OSHA." Id. at 622.

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 The Court also found an employee's injury resulting from the deliberate

removal of a safety device "to enhance profit or production, with substantial

certainty that it will result in death or injury to a worker," paired with the

employer's "deliberately and systematically deceiv[ing] OSHA into believing

that the machine is guarded" could not be considered "to constitute simple facts

of industrial life." Ibid. It concluded it was "confident that the Legislature

would never expect [such conduct] to fall within the [WCA] bar." Ibid.

Here, the motion record does not reflect defendants' actions satisfy the

high bar to apply the intentional wrong exception. First, the evidence does not

establish defendants knew use of the modified mixer was substantially certain

to result in injury, as required under the conduct prong. We acknowledge

defendants were aware their modification to the mixer necessarily meant the

machine was broken to some degree. However, unlike in Laidlow or the other

cases noted, defendants had not received any formal OSHA citation about the

machine, nor any previous complaints from employees, including Glen. Indeed,

Glen did not protest use of the modified mixer or request it be repaired at any

point, and he testified to using it multiple times in the past and fifteen to twenty

times on the day of the incident. No evidence in the record demonstrated any

prior injuries or "close calls" resulting from use of the mixer, or even similarly

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modified mixers. Finally, defendants did not attempt to conceal the machine's

alteration from Glen or regulatory authorities.

Plaintiffs also fail to overcome the "high threshold" of the context prong,

Van Dunk, 210 N.J. at 474, as there is no evidence in the record that defendants'

actions are not "a simple fact of industrial life or are outside the purview of the

conditions that the Legislature could have intended to immunize under the

Workers' Compensation bar." Laidlow, 170 N.J. at 623. The testimony of both

Glen and Wayne, as well as the unrebutted opinions in Pfreunschuh's report,

reflected this modification of a mortar mixer was common practice among the

industry. Unlike in Laidlow, defendants did not engage in any deception about

any danger involved in using the mixer. Further, Glen's injury, which occurred

on the job and directly arose out of his employment by defendants falls precisely

within the Legislature's intended bar of negligence claims against employers.

N.J.S.A. 34:15-7. At bottom, plaintiffs fail to establish defendants' conduct

qualified as an intentional wrong under the statute or the case law.

We also reject plaintiffs' arguments regarding the effect of the apparent

lack of coverage for Glen's injuries in defendants' CGL policy. As discussed,

the WCA does not limit recovery to only those funds available from the Fund

and permits recovery against employers who violate the statutory requirement.

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N.J.S.A. 34:15-120.9; N.J.S.A. 34:15-79(a). We are unconvinced the ostensible

lack of coverage under defendants' CGL policy warrants an exception the WCA

as established by the Legislature.

Finally, we in no way minimize the severity of Glen's injury or the

permanency of its effect on his life going forward. Nevertheless, we remain

convinced that to allow plaintiffs' claims to proceed would be in direct

contravention of the WCA.

Affirmed.

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