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New Jersey Appellate Division Reverses Trial Court’s Dismissal with Prejudice of Lawsuit Due to Failure to Answer Interrogatories

Plaintiff Alexa Rivera, on her on behalf and on behalf of her minor children, filed a lawsuit due to injuries they suffered in an automobile accident in 2018 when her disabled vehicle was struck by a Mack truck owned by defendant Campbell’s Auto Express (“Campbell’s”). She filed a lawsuit, suing the driver, Donald Ayusa and Campbell’s. The issue in A.D. v. Ayusa, 2021 N.J. Super. Unpub. LEXIS 1156 (App. Div. June 17, 2021), was whether the trial court judge mistakenly exercised his discretion in dismissing the complaint with prejudice due to the plaintiff’s failure to timely provide discovery responses.

The plaintiff’s complaint was dismissed without prejudice in August 2019 when she failed to provide discovery. When no motion to restore was made within 60 days, as provided under Rule 4:23-5(a)(2), the defendants then filed a motion to dismiss the lawsuit with prejudice.

This motion was opposed by plaintiff’s counsel, who cross-moved to reinstate the complaint with responses to the overdue discovery. The defendants argued that the responses were “woefully inadequate” and plaintiff had not responded to the defendants’ supplemental interrogatories. The plaintiff’s counsel contended that no supplemental interrogatories were ever served upon plaintiff.

The trial court judge granted the motion to dismiss, basing its ruling on plaintiff’s failure to serve answers to the supplemental interrogatories, and apparently overlooked the dispute as to whether they were ever served.

The plaintiff then appealed this dismissal to the Appellate Division. The Court found that the trial court judge had overlooked the safeguards built into Rule 4:23-5(a) that must be followed before a lawsuit can be dismissed with prejudice for failure to answer discovery. The trial court should have ensured that the delinquent party had filed an affidavit, as required by this rule, that counsel served the client with the order of dismissal without prejudice, which had to be accompanied by a specific notice “explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore” and further that the client had been served with additional notification of the pendency of the motion to dismiss with prejudice.

Additionally, appearance by the attorney for the delinquent party at the return date of the motion hearing is mandatory.  Here, the trial court judge decided the motion on the papers with no oral argument. Further, there was no affidavit filed by the plaintiff’s counsel of the required notifications to the plaintiff.

The Appellate Division concluded that the trial court mistakenly exercised its discretion to dismiss this case with prejudice because (1) the trial court failed to review the plaintiff’s answers to interrogatories and resolve their adequacy and determining whether supplemental interrogatories had ever been served and (2) ensuring that plaintiff’s counsel had served plaintiff with the original dismissal order and the required notices under Rule 4:23-5(a). Hence, the dismissal with prejudice order was reversed and the case remanded back to the trial court.

Appellate Division Issues Ruling Explaining Distinction Between Motions for Reconsideration of an Interlocutory Order Versus a Final Order

In the published Appellate Division decision of Lawson v. Dewar, 2021 N.J. Super. LEXIS 69 (App. Div. May 27, 2021), the Court addressed the “commonly misunderstood distinctions” between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.  This case concerns a complaint by the plaintiff Alfred Lawson against the Borough of Bound Brook and numerous of its police officers alleging that he was physically beaten, at times while handcuffed, when arrested by the Bound Brook police officers.  At issue in this decision was the motion for reconsideration of the trial court’s order as to certain requests made during discovery.

This case ended up in the Appellate Division on an interlocutory appeal (interlocutory means before the final conclusion of the case) to review the trial court’s decision to bar the turnover of use-of-force reports, denying leave to amend the complaint to add a civil conspiracy claim and bar a potential witness, Nestor Crespo, from testifying at trial because he failed to appear for a subpoenaed deposition.  The original motion, addressing these issues, was decided on May 14, 2020. 

In June 2020, the plaintiff filed his motion for reconsideration of these three aspects of the judge’s order.  For some unknown reason, while that motion was pending, the lawsuit was transferred from Mercer County and then to Middlesex County.  The Middlesex County judge heard the motion for reconsideration on February 19, 2021 and denied all the requested relief.  The plaintiff then filed an application with the Appellate Division for leave to appeal, which was granted.

The Appellate Division noted that the basis for the Middlesex County judge’s denial of the prior judge’s order was that

  • He was being asked to reconsider the decision of a co-equal member of the judiciary;
  • There is nothing new presented that had not been available to or presented to the prior judge when deciding the original motion;
  • Plaintiff failed to demonstrate that the prior judge acted in an arbitrary, capricious or unreasonable manner;
  • That plaintiff failed to successfully navigate “the narrow corridor of showing the prior decision was based upon a palpably incorrect or irrational basis where the prior judge failed to appreciate the significance of probative, competent evidence;”
  • The overlay of the law of the case instructs courts to respect the rulings of a different judge during pendency of the given case “unless presented by substantially different evidence, new controlling authority, or a showing that the prior ruling was clearly erroneous.”

The Appellate Division noted that the trial court judge did reject the defendant’s argument that the reconsideration motion was time barred by referring to the substantial delay caused by the change in venue.

The Appellate Division found a multitude of problems with the Middlesex County judge’s rationale in denying the motion for reconsideration and took this opportunity in this published decision to “point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.”

First, the Court pointed out that the judge’s disposition lies with his application of principles relevant to a motion to reconsider a final order which are incompatible with a request that an interlocutory order be reconsidered.  The Appellate Division noted that a frequent misconception concerns the time which to file a motion for reconsideration of an interlocutory order.  Under R. 4:49-2, there is a 20 day time bar for filing motions to alter or amend a judgment or order.  However, this rule only applies to final orders and, hence, this rule had no application to the order issued by the first judge because it was not a final order.

Also, because the standard cited by the trial court judge, requiring a showing that the challenged order was the result of a “palpably incorrect or irrational” analysis or “of the judge’s failure to consider or appreciate competent or probative evidence” did not apply to this motion.  Instead, the Appellate Division pointed out that the judge should have been guided by R. 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is reconsidered based upon R. 4:49-2.

Under rules governing reconsideration, an interlocutory order “shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.”  Further, a motion for reconsideration of an interlocutory order does not require a showing if the challenged order was “palpably incorrect,” “irrational,” or based on a misapprehension or overlooking of significant material based on the earlier application.”  The Appellate Division emphasized that until entry of final judgment only “sound discretion” and the “interest of justice” guides the trial court.  The Appellate Division pointed out prior case law that held that “until the suit ends, a trial court has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.”

Further, the Appellate Division found that the Middlesex County judge made a mistake by giving undue deference to the interlocutory rulings of the prior judge.  The Court specifically stated that: “if a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error.”

The Court also noted that the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders.  The law of the case doctrine “is only triggered when one court is faced with the ruling on the merits by a different and co-equal court on an identical issue.”  The Appellate Division pointed to a prior Supreme Court case in which the Court held in similar circumstances “that the law of the case doctrine does not obligate a Court to slavishly follow an erroneous or uncertain interlocutory ruling.”  As the Supreme Court pointed out: “interlocutory rulings are not considered the law of the case and are always subject to reconsideration up until final judgment is entered.”

The Appellate Division also noted that “there is nothing in our jurisprudence to suggest reconsideration of an interlocutory order is prohibited unless the movant can provide something new or unless the prior judge acted in an arbitrary, capricious or unreasonable manner.”

Finally, the Appellate Division urged judges “not to view reconsideration motions as hostile gestures.”  It noted that “some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available.”  However, the Appellate Division further noted that some reconsideration motions “argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued” and “present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order.” 

In conclusion, the Appellate Division found that the Middlesex County judge applied the wrong standards when ruling on plaintiff’s motion for reconsideration. Hence, the Court vacated the Middlesex County judge’s February 19, 2021 order and remanded the matter back to the trial judge’s further reconsideration of plaintiff’s motion and “his exercise of sound discretion in determining whether any of the challenged interlocutory rulings served, in the words of R. 4:42-2, the interest of justice.”

New Jersey Appellate Division Upholds Dismissal Of Civil Complaint, Dismissed Four Years Earlier Due To Lack Of Prosecution

Plaintiff Maria Santiago was involved in a car crash in Paterson, New Jersey on June 27, 2013 with a car driven by Defendant Castillo-Almonte and owned by Defendant Cepeda.  She timely filed a personal injury lawsuit, suing both the driver and the owner of the vehicle involved in the collision, and was able to serve the driver with the complaint.  However, she failed to serve the owner and the driver never answered.  The case was ultimately dismissed for lack of prosecution as to both defendants. The issue in Santiago v. Castillo-Almonte, 2021 N.J. Super. Unpub. LEXIS 949 (App. Div. May 20, 2021), was whether the plaintiff had shown good cause to justify the reinstatement of her complaint four years after the dismissal.

Plaintiff filed her personal injury lawsuit just days before the running of the two year statute of limitations.  She was able to serve the driver of the motor vehicle, Castillo-Almonte, two months later.  However, despite several attempts by a process server, she was unable to serve the owner, Cepeda.  The driver, Castillo-Almonte, never answered the complaint.

Plaintiff failed to request an entry of default against Castillo-Almonte and ultimately, the Court dismissed the lawsuit without prejudice as to both defendants on January 8, 2016.

The plaintiff’s counsel took no action until March 2019 when he moved to reinstate the matter but then withdrew that motion for reasons unknown.  A second motion was filed in early May 2020, seeking reinstatement and entry of an order permitting substituted service on Cepeda’s insurance company, New Jersey Manufacturers.  In support of that motion, counsel filed a certification but nowhere explained the reason for the four year delay in seeking reinstatement of the complaint. 

The trial court judge denied the motion to reinstate, noting on the order the failure to address either the good cause or exceptional circumstances that could have allowed the case to remain dismissed for well over four years.  The plaintiff appealed, arguing that the Court made a mistake in denying her motion to reinstate her complaint in order to serve Cepeda’s liability insurance carrier.

The Appellate Division stated that it was not convinced that the exceptional circumstances was the correct standard. In a case which has not proceeded at all and the defendants would be represented by the same lawyer, the exceptional circumstances standard may not be the appropriate one.  That standard is the more demanding one and was created when there were multiple defendants. 

However, the Appellate Division noted that the plaintiff’s counsel failed to provide any reasons explaining the four year delay in moving to reinstate the complaint, which precluded even a good cause finding, much less meeting the exceptional circumstances standard to excuse the delay.

The plaintiff’s counsel failed to correct this omission on appeal.  While counsel explained his inability to serve Cepeda, he does not address the reasons for the delay in seeking reinstatement. He merely argued that the case law suggests that dismissals are routinely vacated in favor of a blameless plaintiff who has not had an opportunity to litigate her case.

The Appellate Division noted that the Courts do “look indulgently on the many reasons that could cause a plaintiff’s counsel to fail to timely move to reinstate an action” that was dismissed, “excusing even reasons that are meager and incomplete, so long as the defendant has not come forward with evidence of prejudice.” 

The Court found that the problem in this case is that counsel’s reason for the delay are wholly absent.  Because plaintiff’s counsel failed to provide any explanation at all for the “inordinately long delay” to move to reinstate the complaint, the Appellate Division found that the trial court judge did not abuse his discretion in denying the motion, even under the more “indulgent” good cause standard that might arguably have applied in this instance.

Hence, the Appellate Division upheld the trial court’s order denying reinstatement of the plaintiff’s lawsuit.

This Month’s Two Key Developments On Jurisdiction of Medical Claim Petitions And Orders To Compel Reimbursement Of Costs Of Medical Marijuana

We are two weeks into April, and already the New Jersey Supreme Court has considered two extremely significant issues for workers’ compensation practitioners, employers and carriers.  The first decision was announced on April 1, 2021 when the Supreme Court decided not to take certification in the matter of Anesthesia Assocs. of Morristown, PA v. Weinstein Supply Corp., 2021 NJ LEXIS 286.  This means that the unreported Appellate Division decision stands dealing with jurisdictional issues in medical claim petitions.

There are many hundreds of medical claim petitions in New Jersey where the only contact with the State of New Jersey is the location of the medical procedure.  Anesthesia Associates of Morristown involved two consolidated cases. In the first case, the petitioner lived in, worked in and was injured in Pennsylvania and even filed a claim petition in Pennsylvania.  The medical procedure took place in New Jersey, and the medical provider filed a medical claim petition in the New Jersey Division of Workers’ Compensation seeking additional charges.

In the other case, Surgicare of Jersey City v. Waldbaum’s, all contacts were in the State of New York, but the medical procedure again occurred in New Jersey. The medical claim petition was thereafter filed by the provider in the New Jersey Division of Workers’ Compensation seeking the balance of its original charges of $252,000.

In both cases the respective judges of compensation found that there was no jurisdiction in New Jersey because the State of New Jersey had no jurisdiction over the worker’s underlying workers’ compensation claim.  The judges dismissed the medical claim petitions. The Appellate Division affirmed:  “Applying these considerations to the two cases before us, we agree with the two judges of compensation that there was no cognizable claim for a work-related injury in either case.  Therefore, the Division did not have jurisdiction over AAM’s or SJC’s claims and they were appropriately dismissed, substantially for the reasons expressed by the two judges of compensation.

The medical providers next sought certification from the New Jersey Supreme Court.  The action of the Supreme Court in denying certification in effect is an affirmance of the unreported Appellate Division decision.  The problem is that unreported decisions are not technically precedential. They do not have to be followed by other judges.  It seems clear that the New Jersey Supreme Court agrees with the reasoning of the judges of compensation and the Appellate Division.  Frankly, the Appellate Division decision needs to be reported by the Committee on Publications because it resolves a hotly contested issue within the Division and will avoid further appeals.

On April 13, 2021, the New Jersey Supreme Court released its decision in Vincent Hager v. M&K Construction, (A-64-19) (084045).  The facts of this case will only be dealt with briefly, as the undersigned has written extensively about Hager in prior blogs. The issue concerned whether an employer can be ordered to reimburse the petitioner for the ongoing costs of medical marijuana under the New Jersey Compassionate Use Act.  The Judge of Compensation found in favor of petitioner and ordered the employer to make reimbursement. The Appellate Division affirmed in 2020.  The Supreme Court has now affirmed the Appellate Division decision in a very lengthy opinion.

The Supreme Court found as follows:

  • The Compassionate Use Act cannot require a private health insurer to reimburse a person for costs associated with the medical use of cannabis, but the term “private health insurer” does not include workers’ compensation coverages. Therefore employers and carriers in workers’ compensation are not exempt from the reimbursement requirement by statute.  
  • The Court found that there is competent medical evidence to support the argument that medical marijuana can restore some of a worker’s function or, as in Mr. Hager’s case, relieve symptoms such as chronic pain and discomfort. For this reason the Court said that medical marijuana may be found to constitute reasonable and necessary care under the New Jersey Workers’ Compensation Act.
  • The Court devoted most of its decision to the conflict between the Controlled Substances Act, which lists marijuana as a Schedule One drug, and the Compassionate Use Act.  The issue more precisely was whether the federal law preempts state law in respect to requiring reimbursement for costs of medical marijuana.  The Court focused heavily on recent Congressional appropriations riders. “Congress has, for seven consecutive fiscal years, prohibited the DOJ from using funds to interfere with state medical marijuana laws through appropriations riders.”  The Court said, “We conclude that the CSA, as applied to the Compassionate Use Act and the Order at issue, is effectively suspended by the most recent appropriations rider for at least the duration of the federal fiscal year.”  The Court added,  “Qualified patients may continue to possess and use medical marijuana, and related compensation orders may be entered while federal authorities continue to enforce the CSA to the extent Congress permits.”
  • The Court rejected the argument that employers which are ordered to reimburse employees for costs of medical marijuana amount are violating federal law by aiding and abetting under 18 U.S.C. section 20.  To be more precise, M&K contended that the company was being forced to break federal law.  The Court concluded that there can never be aiding and abetting when actions are taken pursuant to a court order, including an order in the Division of Workers’ Compensation.

Some other state courts, such as in Maine and Massachusetts, have gone in a different direction from the New Jersey Supreme Court on the preemption issue.  The New Jersey Supreme Court acknowledged that there is no consensus on this issue among all the states that have addressed it.  Eventually this issue may find itself before the United States Supreme Court.   

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New Jersey Supreme Court Rules That Employee Volunteer at Family Fun Day Event Was Performing Work Duties And Was Not Engaged In A Social Or Recreational Activity

In 1979 the New Jersey legislature adopted a change to N.J.S.A. 34:15-7 to add that recreational and social activities are not compensable unless the injured worker could prove that the activity promoted a benefit to the employer beyond improvement of health and morale.  Prior Supreme Court cases have already made clear that if an employer compels attendance at a social or recreational event, then an injury during a social or recreational activity will be found to be compensable.  But it has taken over 40 years for a case to get to the Supreme Court which defines what constitutes a social and recreational activity in the first place, and what sort of activities satisfy the standard of proof of a benefit beyond improvement of health and morale.  Last week’s Supreme Court decision in Goulding v. NJ Friendship House, Inc., (A-48-19) provides very helpful answers.

The key facts are simple.  Goulding was an employee of North Jersey Friendship House, Inc., which is a non-profit that assists individuals with developmental disabilities.  She worked Monday to Friday as a chef/cook, and she cooked meals for Friendship House’s clients, as well as teaching vocational classes.

Goulding was injured on Saturday, September 23, 2017 when Friendship House hosted its first “Family Fun Day.”  It planned to host this event annually going forward. The stated purpose of the event was to offer a fun and safe environment for the clients of Friendship House and their families.  As such, Friendship House asked for volunteers to work the event.  Employees were under no obligation to attend the event.  Goulding volunteered.

Goulding arrived between 8:30 and 9:00 a.m. and started setting up for breakfast.  After breakfast was concluded, she began preparing for lunch.  She injured her ankle when she stepped in a small pothole in the parking lot and fell.  Several people assisted her in getting up and helping her ice her foot.  She continued working, helping the other cooks prepare lunch.  She never participated in any of the games or activities at the event, and she left around 2:30 p.m.

A claim petition was filed as well as a motion for medical and temporary disability benefits. Goulding sought surgery to repair her injured ankle as well as temporary disability benefits from the date of her injury.  Both the Judge of Compensation and the Appellate Division found against petitioner.  The Judge of Compensation ruled that Family Fun Day was a social and recreational event. The Judge found that there was no proof that this event “was a regular incident of employment.”  The Judge observed that petitioner volunteered to participate and was not pressured to do so. Finally, the Judge found that there was no proof of a benefit to Friendship House beyond improvement of health and morale.  For much the same reasons, the Appellate Division affirmed.

The New Jersey Supreme Court granted certification.  Goulding argued before the Supreme Court that she was there to work and was never engaged in any recreational or social activities. She also argued that even a first annual event can be considered to be a regular incident of employment.  She added that there was a benefit beyond improvement of health and morale for Friendship House because the event furthered the mission of the non-profit in providing services to clients and their families. 

For its part Friendship House argued that the law does not apply to those who truly volunteer and have no expectation of financial consideration.  Friendship House also argued that this situation was unlike those cases where the Supreme Court found coverage because an employee was compelled to perform some task.  There was no compulsion in this case. Finally, Friendship House argued that this was not a fundraiser and there was no benefit to Friendship House beyond improvement of health and morale.

The Supreme Court first observed that just because an activity is non-compulsory does not mean that it must be considered a social or recreational activity.  The Court found that Goulding was working at the event and as to her, the event was not a social or recreational activity. The Court said, “In contrast to prior cases where the employees were participating in the social or recreational activity – playing softball, golfing, or attending a picnic – Goulding was facilitating Family Fun Day by cooking and preparing meals for clients of Friendship House, just as she does in her regular employment. Accordingly, Family Fun Day, as to Goulding, was not a social or recreational activity.  And, because Friendship House has advanced no other applicable exception under the Act, Goulding’s injuries are compensable.”

Next, the Court tackled the language of the statute itself.  The Court concluded that even if Goulding’s activities were considered social or recreational, she met the statutory exception.  The Court viewed the event as a regular incident of employment because it was sponsored by Friendship House and because it was planned to be an annual event.  The more difficult question was whether there was a benefit to Friendship House beyond improvement of health and morale. The Court highlighted the following points:

  • There was nothing in the trial record suggesting employees and their own families were invited to attend as guests;
  • The event’s purpose was “celebrating clients or members, their families, and the community.”
  • Friendship House received the “intangible benefits” of promoting itself and fostering goodwill in the community
  • The experience enjoyed by the clients and their families constituted “a separate benefit in and of itself.”

There is a fundamental problem with the Court’s primary holding that Ms. Goulding was working during this event and not engaging in a social or recreational activity.  The logical conclusion of the decision that Goulding was working at the Fun Day event brings into play the Fair Labor Standards Act. The Court observed that Goulding did not participate in any fun activities but it failed to address the elephant in the room — whether Friendship House was required to pay Goulding and other non-exempt cooks like her who were doing their regular jobs.  If they were truly working, of course they would have to be paid.

More than likely Ms. Goulding volunteered to cook and probably had no expectation of being paid. She probably felt her contribution to the event would be better served by cooking and interacting with clients in that manner, as opposed to playing games with clients. She could have changed her mind at any point or she could have done both.  The case will have the negative effect of deterring employers from hosting positive events like this Family Fun Day event because the employer will have to figure out ahead of time who will be working and who will not be and then pay those volunteers who were considered to be working.  Employers will also have to keep accurate time records in order to make correct payments.

The Court’s alternative analysis was the right one.  Petitioner was able to meet the statutory exception to the law in N.J.S.A. 34:15-7.  In this practitioner’s view, petitioner was involved in a social and recreational activity and was not working.  She proved to the Supreme Court that there was a benefit to Friendship House greater than improvement in health and morale.  The Court therefore concluded that she should therefore be covered for workers’ compensation purposes.  This analysis avoids the FLSA issue for future employers who host events like this.

For employers, practitioners and judges, the focus should be now on whether the goal of the employer-sponsored activity is targeted to serving clients and promoting business opportunities as opposed to promoting health and morale of the employees through an employee softball game or an employee picnic, for example.  If the objective is to reach out to the community at large and promote goodwill or company advertisement of its services, this case suggests that an injury to a volunteer during such an event will be considered compensable for workers’ compensation purposes. If the purpose is just to promote health and morale of employees, the activity is not compensable.

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Appellate Division Rules Against Medical Providers In Jurisdictional Dispute Where Almost All Contacts Were In Pennsylvania And New York

An important decision came down today on an issue that concerns practitioners, employers, carriers and third party administrators.  The decision is the first appellate level opinion on a long-running dispute over jurisdiction in certain MCP cases filed by medical providers in New Jersey. The decision is likely to affect hundreds of pending cases with similar facts in the New Jersey Division of Workers’ Compensation.

In Anesthesia Associates of Morristown, P.A. v. Weinstein Supply Corp.,  Nos. A-5033-18T4, A-5718-18T4 (App. Div. October 7, 2020), two Medical Claim Petition applications involving similar facts were heard back to back by the Appellate Division.  The first case pertained to an application filed by Anesthesia Associates of Morristown, Pennsylvania, hereinafter (AAM). The case involved an employee who was injured in 1998 in the State of Pennsylvania. The employee was a resident of Pennsylvania and his employer was based in Pennsylvania.  A claim was filed with the Pennsylvania Bureau of Workers’ Compensation.

All connections were with Pennsylvania, except that petitioner had a medical procedure in New Jersey.  AAM submitted its charges of $12,992 under the Pennsylvania fee schedule and got paid $1,070.31.   AAM then filed an MCP application in New Jersey seeking the balance.  Liberty Mutual, the carrier for Weinstein Supply, took the position that there was no jurisdiction in New Jersey over this MCP application.

The Judge of Compensation dismissed the MCP application and ruled that the underlying workers’ compensation case needs to be compensable under New Jersey law for jurisdiction over the MCP application.  In this case the Judge concluded there were insufficient contacts in the State of New Jersey with respect to the underlying compensation claim.

The other case which was argued on the same day involved Surgicare of Jersey City v. Waldbaum’s.  In this case, the facts were identical except that virtually all contacts were in the State of New York instead of Pennsylvnia.  The injured worker resided in New York, worked in New York and was injured in New York.  The worker filed a claim in New York against Stop & Shop, the employer, which was treated as one and the same as Waldbaum’s of Montvale, N.J.

On March 6, 2017, the New York Workers’ Compensation Board determined that surgery was necessary in the underlying workers’ compensation case.  The employee then underwent surgery at Surgicare of Jersey City’s facility in Jersey City.  Surgicare billed $252,900 but received payment of $20,085.28 through the New York Workers’ Compenstion Board.  Like Pennsylvania, New York has a fee schedule.  Surgicare then filed an MCP application in New Jersey to obtain the balance of its original charges of $252,900. 

The Judge of Compensation found that virtually all material connections in the underlying workers’ compesantino case were in New York, other than a one-day procedure in Jersey City, N.J.  The Judge of Compensation therefore dismissed the MCP application. 

The Appellate Division adopted in both cases the reasoning of both judges of compensation.  The Court first acknowledged that the New Jersey Legislature amended N.J.S.A. 34:15-15 in 2012 to grant exclusive jurisdiction to the New Jersey Division of Workers’ Compensation for any disputed medical charge arising from any claim for compensation for work related accident or illness.

The Appellate Division went on to embrace the six factors that courts must consider in deciding jursidction set forth in Larson’s Workers’ Compensation Law. 

  1. Place where the injury occurred;
  2. Place of making the contract;
  3. Place where the employment relation exists or is carried out;
  4. Place where the industry is localized;
  5. Place where the employee resides; or
  6. Place whose statute the parties expressly adopted by contract

The Appellate Division agreed with both judges of compensation that the 2012 amendment did not apply to MPC applications in matters where the Division did not have jurisdiction over an employee’s underlying compensation claim. The Court concluded:

Applying these considerations to the two cases before us, we agree with the two judges of compensation that there was no cognizable claim for a work-related injury in either case.  Therefore, the Division did not have jurisdiction over AAM’s or SJC’s claims and they were appropriately dismissed, substantially for the reasons expressed by the two judges of compensation.

The Appellate Division gave short shrift to the argument of the medical providers that the employers were in breach of contract.  “Suffice it to say that their contentions based on an alleged breach of contract are unsupported by any evidence of an agreement between either of them and the injured employees’ employers.” 

These two cases are the first appellate division decisions directly on point in MCP jurisdictional disputes.  The case is currently unreported but its logic is unassailable. The losing medical providers could still seek certification from the Supreme Court. We will keep readers posted if that does occur.

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Divided Supreme Court Upholds Right of Employer to Pursue Subrogation For Payment Of Workers’ Compensation Benefits Even Where Employee Cannot Sue Due to The Limitation-On-Lawsuit Option

One of the most significant cases for employers in many years is N.J. Transit Corp. v. Sanchez, 2020 LEXIS 520 (N.J. May 12, 2020).  This decision is really a game changer for employers, carriers and third party administrators.  The conventional wisdom has always been that if an injured worker cannot sue for personal injuries in a motor vehicle accident on account of having the limitation-on-lawsuit option (aka “verbal threshold”), then the employer cannot pursue subrogation rights.  The argument has always been that the employer stands in the shoes of the worker.  But the Appellate Division and Supreme Court opinions in Sanchez have upended conventional wisdom.

The key facts were that David Mercogliano was driving a vehicle during the course of his employment when he was rear-ended by a vehicle driven by Sandra Sanchez and owned by Chad Smith.  N.J. Transit owned the vehicle Mercogliano was driving and paid $33,625.70 in workers’ compensation benefits.  Mercogliano never sought or received PIP benefits under his personal automobile policy.  He also never sued Sanchez because he could not meet any of the exceptions under the limitation-on-lawsuit option.

N.J. Transit filed a complaint against Sanchez and Smith to recoup its payments under N.J.S.A. 34:15-40 relying on Section (f), which allows employers which have paid workers’ compensation benefits to injured employees to pursue subrogation rights after a one-year period.  Sanchez and Smith argued in part that N.J. Transit was barred from recovery because Mercogliano could not bring his own suit. The Appellate Division disagreed with Sanchez and Smith, allowing N.J. Transit to recover its payments in the civil suit because Mercogliano had not received PIP benefits and N.J. Transit was trying to recover its own economic losses.  The Supreme Court took certification and came down equally divided in its decision.  When that occurs, it represents an affirmance of the Appellate Division decision.

Why is this a game changer? Because most New Jersey drivers opt for the limitation-on-lawsuit option since that option lowers car insurance premiums.  So the precise situation in this case happens all the time.  The verbal threshold policy means that injured workers in car accidents cannot bring a civil suit against a negligent third party unless they can show one of six exceptions, the main one being a permanent injury.  Unlike workers’ compensation law, permanent injury is defined very strictly under AICRA (Auto Insurance Cost Reduction Act). Sometimes even a herniated disc may not suffice to prove a permanent injury under AICRA.

The Supreme Court found no evidence that when the Legislature enacted AICRA, it intended to bar employers and insurers that have paid workers’ compensation benefits from seeking reimbursement from third-party tortfeasors where the injured worker did not seek or receive PIP benefits.  Normally injured workers who receive medical benefits and temporary disability benefits in workers’ compensation would not also seek or receive PIP benefits.

Another key fact for employers to consider is the percentage of recovery.  An employer’s lien is typically limited to two thirds (the other third represents the contribution to the plaintiff’s counsel fee). But there is no plaintiff bringing suit here, so the employer can recover the entire amount of its payments reduced only by whatever contractual arrangement the employer has with its own subrogation counsel. 

This decision has generated both interest and surprise among employers, carriers and third party administrators.  Frankly, the scope of the decision is just beginning to be fully appreciated in the employer community, and the case has not gotten all the attention it deserves.  Kudos to N.J. Transit and their counsel for taking a creative position that has essentially carved out new law for the benefit of employers.  For large employers, carriers and third party administrators, the decision is huge:  it will literally mean over time millions of dollars in recovery for economic payments made under workers’ compensation. 

In response to client interest, Capehart Scatchard has established a subrogation recovery team comprising partners Betsy Ramos, Chris Carlson and Voris Tejada. Interested clients can email bramos@capehart.com. ccarlson@capehart.com, vtejada@capehart.com or the undersigned for more information and for copies of the decisions of the Appellate Division and Supreme Court.

The post Divided Supreme Court Upholds Right of Employer to Pursue Subrogation For Payment Of Workers’ Compensation Benefits Even Where Employee Cannot Sue Due to The Limitation-On-Lawsuit Option appeared first on NJ Workers' Comp Blog.

Snow Removal Contractor Found Not To Have Violated Contract For Failure To Add Owner Of Property To Its Liability Policy

The plaintiff, Donna Michel was walking across the parking lot of the Wayne Towne Center when she was struck by a car operated by Sharon Langel.  At the time of the accident, piles of snow on medians at the end of the rows of the parking spaces in the parking lot allegedly impeded Langel’s visibility as she made a left hand turn just before her car struck plaintiff.  The plaintiff sued the driver, as well as the property owner of the shopping center, the store she was walking in front of before she was hit, and the snow plow operator.  The issue in Michel v. Langel, 2020 N.J. Super. Unpub. LEXIS 869 (App. Div. May 8, 2020), was whether the snow contractor (Conrow Construction Company) breached its agreement with the property owner (VNO) and the store (DSW) due to its failure to defend and indemnify these defendants.

The Appellate Division found that the scope of Conrow’s duties and responsibilities related to the parking lot were governed by a Services Agreement with the owner of the shopping center, VNO.  According to the contract scope of work, snow would be removed from the premises only when directed to do so by Vornado Realty Trust’s personnel.  The contractor would be responsible for the disposal of snow if it should become necessary.  The Agreement also contained insurance provisions and an indemnification provision.  Under the insurance provision, Conrow was required to obtain and maintain various types of insurance which included commercial general liability coverage.  Conrow was also required to maintain an excess policy.  The Services Agreement also provided that VNO was to be named as an additional insured on most of the insurance policies.  Under the indemnity provision, Conrow agreed to defend and indemnity VNO from all claims and damages caused by Conrow, excluding any claim or damage caused by the “sole negligence” of VNO.

Conrow did obtain commercial and general liability insurance but did not name VNO as an additional insured.  Instead, it only named “Vornado Realty Trust,” the property management company, as an additional insured party.  Moreover, the policy excluded coverage for claims “arising out of the acts, omissions and/or negligence of the additional insured.”

The plaintiffs settled their claims against the defendant Langel.  Thereafter, they amended their complaint to name as a defendant their own auto insurance, NJM to seek to recover underinsured motorist benefits.

During discovery, a Conrow representative testified that the property manager instructed Conrow to locate the plowed snow in the same places as the prior contractor.  The representative had observed that the prior contractor did pile the snow in median aisles in front of the DSW store.  Thus, Conrow claimed that the decision as to where to place the plowed snow was made by the property manager, who was controlled by VNO.

VNO and DSW moved for a partial summary judgment against Conrow, claiming that Conrow had breached its contract by failing to name VNO as an additional insured and its agreement to defend and indemnify VNO.  While the motion was pending, all parties participated in a mandatory, non-binding arbitration.  The arbitrator found that the plaintiff’s injuries were caused by the negligence of Langel, VNO, DSW, and Conrow and awarded Michel $450,000 in gross damages, and allocated the damages among the defendants.  No party objected to the award and the award was incorporated into a judgment.  

In the arbitration award, the arbitrators allocated negligence as follows: 40% to Michel; 30% to Langel; 15% to VNO and DSW; and 15% to Conrow. 

Thereafter, the trial court issued its Order, denying the partial Summary Judgment Motion by VNO and DSW.  The court reasoned that the arbitrator had found VNO negligent for its own conduct.  In reviewing the indemnification provisions, the court found nothing requiring Conrow to defend or indemnify VNO for its own negligent conduct.

The court also found that Conrow had failed to name VNO as an additional insured.  The court reasoned, however, that the failure did not cause VNO any damages because the insurance policy excluded coverage for the negligence of the additional insured party.  Thus, even if VNO had been properly named as an additional insured, it would not have been covered for its own negligence.  The court noted that there was nothing in the Services Agreement which prevented Conrow from obtaining a policy excluding coverage for the negligence of the additional insured. 

VNO and DSW moved for reconsideration of that Order, which was denied by the trial court.  This appeal thereafter ensued.

The Appellate Division agreed with the trial court decision and affirmed the denial of the summary judgment as to VNO and DSW.  The Court pointed out that Conrow’s potential liability to VNO was governed by the obligations it undertook in the Agreement.  While the Court agreed that the policy did require that VNO was to be named as an additional insured, the issue was whether VNO was damaged by that failure.  The Appellate Division agreed with the trial court that VNO was not damaged.

The Court pointed out that in establishing the requirements for coverage, the Services Agreement did not state that the additional insured needed to be insured for its own negligence.  Instead, the insurance provision was designed to assure that Conrow’s negligence was covered.  The policy that Conrow obtained did not cover the additional insured VNO’s negligence.  Thus, VNO was not damaged by Conrow’s failure to name it as an additional insured because VNO’s liability was predicated on its own negligence.

The Court also noted that Conrow had an independent obligation to defend and indemnify VNO.  However, those obligations were limited to defending and indemnifying for claims arising out of Conrow’s acts or omissions.  The indemnification provision did not obligate Conrow to defend or indemnify VNO for its own negligence.  Specifically, the Appellate Division pointed out that the indemnity provision in the Agreement excludes anything caused “by this sole negligence” of VNO.

The Appellate Division found that for both the insurance and the indemnification provisions in the Agreement, Conrow was protecting VNO for claims arising out of negligent or intentional actions by Conrow and its employees.  Those provisions did not protect VNO from claims arising out of VNO’s negligent acts.  Thus, the contract was consistent with most indemnification provisions, which generally do not protect the party being indemnified from its own negligence.  Accordingly, the Appellate Division upheld the trial court decision which denied the summary judgment motion filed by VNO and DSW.

Questions Of Proper Speed And Control Of A Vehicle Found To Be Question Of Fact In Auto Accident Case, Precluding Order For Summary Judgment

The plaintiff Alma Miley was involved in an automobile accident with the defendant Andrew Friel.  It occurred at an intersection in which plaintiff’s direction of travel was controlled by a stop sign but defendant’s direction of travel was not.  The issue in Miley v. Friel, 2020 N.J. Super. Unpub. LEXIS 57 (App. Div. January 9, 2020) was whether the trial court judge properly granted summary judgment despite conflicting testimony of the speeds of the involved cars. 

The accident occurred at the intersection of Holly and High Streets in Glassboro.  Plaintiff claimed that she stopped at the stop sign on Holly Avenue and looked both ways, preceding into the intersection at about 5-7 miles per hour.  When she was in the middle of the intersection, almost to the other side, the front of her vehicle was struck by defendant’s vehicle.  She claimed that the defendant driver was driving well above the speed limit, causing the collision.

The defendant’s version of the car accident was much different.  He claimed that he was driving at about 20 miles per hour, while plaintiff was probably driving at 30-40 miles per hour, but definitely over the speed limit at the time of the impact.  He noticed plaintiff’s vehicle at the very last second as she was coming through the intersection. 

The defendant had a passenger who partially corroborated and partially contradicted the versions of both the plaintiff and the defendant.   According to the passenger, both vehicles were traveling at about the same speed at the time of impact.  The passenger stated that the plaintiff was traveling at least 35-40 miles per hour and defendant was traveling about 35 miles per hour.  The defendant’s passenger testified that there was no indication that plaintiff attempted to stop before the impact. 

At the trial court level, the defendant successfully moved for summary judgment, arguing that there was no evidence demonstrating that the defendant was speeding at the time of impact.  The plaintiff argued that the record at least supported a comparative negligence theory.  She also argued that the stop sign was erected without prior approval of the Commissioner of Transportation and, thus, rendered the intersection uncontrolled.  She contended that she was the first vehicle to enter the intersection and, therefore, if the intersection was uncontrolled, she would have the right of way.

The trial court judge concluded that the evidence was so in favor of the defendant that the plaintiff had not stated a claim from which reasonable minds could differ in deciding that she was at least 51% or more at fault.  In his decision, he found that the plaintiff had the stop sign and the defendant had the right of way.  He also found that the plaintiff needed an expert to opine as to the speeds of the involved cars.  Because discovery had not yet closed, the trial judge dismissed the plaintiff’s complaint without prejudice, giving her the opportunity to retain an accident reconstruction expert to opine that the vehicle driven by the defendant was speeding at the time of impact.  He also rejected plaintiff’s argument that the stop sign was illegal. 

The plaintiff did not retain an accident reconstruction expert and this appeal ensued. 

Initially, the Appellate Division rejected the plaintiff’s contentions that challenged the legal effect of the unapproved stop sign.  Based upon New Jersey law, the unlawful installation of a stop sign does not render the sign ineffective for purposes of imposing civil liability because motorists may reasonably expect that a stop sign will be respected.

However, the Appellate Division disagreed with the trial court judge that the defendant was entitled to summary judgment.  The Court noted that in an automobile negligence action “questions of proper speed and control of a vehicle are pre-eminently questions of fact for the jury to determine.”  Also, the Court noted that the “favored driver” approaching an intersection “has a continuing duty to exercise due care even though the disfavored driver has stop sign to obey.”

Based upon the Appellate Division’s review of the record, the Court found that there were material issues of fact “as to whether defendant made proper pre-accident observations and whether he took reasonable and effective measures to avoid the accident.”  In the Court’s view, the facts were not so one-sided that the defendant was entitled to prevail as a matter of law. 

The Appellate Division also disagreed with the trial judge that expert testimony was necessary to resolve the conflicting versions of the speed of the vehicles at the time of the collision.  The Court noted that our Supreme Court had previously observed that “traditional examples of permissible lay opinions include the speed of which a vehicle was traveling.”  Thus, the Appellate Division found that both the parties and the defendant’s passenger may all testify as to their perceptions of each vehicle speed without the necessity of expert testimony. 

Accordingly, the Appellate Division reversed the order granting summary judgment in favor of the defendant and remanded the matter back to the trial court for further proceedings. 

Policy Holder Made Material Misrepresentations To Its Workers’ Compensation Carrier Warranting Finding Of Fraud Under N.J.S.A. 34:15-47.4

N.J.S.A. 34:15-79(a) is the source of considerable litigation in workers’ compensation.  It provides that “Any contractor placing work with a subcontractor shall, in the event of the subcontractor’s failing to carry workers’ compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor.” There are many cases on the back end where an employee of a subcontractor is injured and brings a claim against the general contractor after the employee’s subcontractor is found to have no workers’ compensation coverage.  But the case of Fournier Trucking v. New Jersey Manufacturers Insurance Co., No. A-1353-18T2 (App. Div.  April 9, 2020), deals with the situation on the front end – after the policy of insurance is written and before any accident should occur.  The focus in this case was on inaccurate information provided by the policy holder to NJM about the risks inherent in its business in order to reduce workers’ compensation premiums.

To appreciate the ruling in this case requires some
understanding of the details of the trucking business at issue.  Shippers would hire Fournier Trucking to
deliver goods primarily to west coast states when the shippers had to deliver
less than a full truckload of product or when they had to make deliveries to
multiple locations.  Fournier Trucking
(hereinafter “FT”) would use its own employees to collect loads from its
shipping company clients in the tri-state area and then gather them in its New
Jersey warehouse.  FT would hire
independent motor carriers to then haul freight to west coast states.  FT would coordinate communication between its
customers and the independent carriers, but the carriers provided their own
equipment.  FT would send the customers
an invoice and then pay the carriers for transport services.

The relationship between FT and NJM began in 2003 through an
assigned risk policy.  At that time FT
indicated that it had no owner operators. 
In its initial audit NJM was of the understanding that FT used no
subcontractors or owner operators.  For
the 2014-2015 policy year, NJM estimated an annual premium of $43,193 with a
total annual premium of $45,579.  
However, an NJM auditor years later happened to notice a discrepancy in
the number of drivers reported by FT and the number of drivers which FT listed
in a federal licensing database.  A site
inspection ensued and NJM learned for the first time that FT used between 15
and 20 independent motor carriers for shipping. 
Naturally, NJM was concerned that it was exposed to much more risk than
it had ever appreciated since injured employees of carriers without workers’
compensation coverage could be covered under the above provision in Section
79(a).  Therefore NJM unsuccessfully sought
information from FT about these carriers and their insurance certifications.

By July 2015 NJM still had not received any Form 1099s or
certificates of insurance for the carriers that FT worked with to ship to the
west coast.  FT refused to provide any
such information.  NJM was left with no
alternative but to estimate the remuneration paid by FT to the uninsured
carriers at an amount of $100,000.  That
raised the total standard premium to $57,043 with the total cost of
$70,980.  FT protested.  While FT insisted that it had agreements
requiring the many carriers to maintain insurance, FT would not provide any
proof.

On December 23, 2015, FT’s lawyer acknowledged for the first
time that their motor carriers “in
certain cases employ their own employees.” FT denied that it issued any
Form 1099s to the carriers.  Two months
later, the FT Vice President of Operations denied to NJM that the carriers had
any employees, contrary to the admission of their own counsel. She also said
that $100,000 would easily cover all payments that FT made to its
carriers.   Later at trial the Vice President of
Operations had to recant her representations and admit as well that the company
was in possession of Form 1099s for some motor carriers it worked with in 2015.  She also admitted that she never knew whether
or not the motor carriers had employees.

Since NJM could not receive information on coverage for FT’s
carriers, it did a second audit in 2016 and adjusted the premium for 2014-2015
to $344,001 with a total audited cost of $426,359.  NJM indicated that it would not charge FT for
any additional risk if the company would just demonstrate proof that the many
carriers it worked with maintained workers’ compensation coverage for their
employees.  FT then sued NJM seeking
injunctive relief.  NJM counter sued for
breach of contract and fraud under N.J.S.A. 34:15-57.4.

During discovery FT listed a total of 81 carriers that it
utilized, 15 of which had multiple drivers. 
The trial judge granted summary judgment in favor of NJM on breach of
contract counts and ordered FT to provide copies of information relating to its
carriers, including 1099s, certificates of insurances, and names and addresses
of the 15 carriers.   The trial judge
held that NJM was entitled to charge a premium for amounts paid to the
uninsured subcontractors pursuant to N.J.S.A. 34:15-79(a).

On June 15, 2018, FT provided documents showing amounts paid
to 15 carriers in 2014 totalling $2.59 million dollars, more than 25 times
higher than the VP of Operations admitted. Only one of the carriers had
workers’ compensation for its employees. 
Fourteen of the carriers FT was using had no workers’ compensation
coverage for their own employees.  NJM
revised the new premium at this point to $145,321.  On the remaining fraud count, the trial judge
found that FT was well aware all along that its carriers had employees and had
been well aware that it paid far more than $100,000 to its motor carriers.  The judge found that FT purposefully and
knowingly made misleading and false statements to NJM to avoid payment of additional
premiums and withheld material information from NJM in violation of N.J.S.A.
34:15-57.4, the New Jersey Fraud Act.

The trial judge awarded NJM $254,329.17 for unpaid premiums
of $145,231, simple interest of $7,603.44, costs of $6,802.73 and attorneys’
fees of $94.692.  The judge further found
that NJM’s witnesses were entirely credible while finding that FT’s VP of
Operations was less than credible.

FT appealed to the Appellate Division which affirmed the
trial judge on each issue.  FT tried to
argue that its motor carriers were independent contractors but not
subcontractors under Section 79(a). The Court disagreed:  “Because
the shipping companies that hire FT for individual shipments exercise little
control over FT’s transportation services, FT is clearly a ‘contractor’ for
those shipping companies within the meaning of N.J.S.A. 34:15-79(a).” The
Court added, “… subcontracting is merely ‘farming out’ to others all or part of
work contracted to be performed by the original contractor.” The Court said:

Shippers hire FT to consolidate and
transport goods.  FT consolidates the
goods itself and then subcontracts with the carriers to perform the
transportation.  Therefore, FT is a
contractor, and the carriers it uses to fulfill part of its contracts with
shippers are subcontractors.

Next, FT argued that carriers are not employees of FT but
are independent contractors.  For its
part, NJM had already conceded this argument and had never argued that the
carriers were employees of FT.  Rather,
NJM argued that the issue pertained to the employees
of the motor carriers who might be injured. The Court said:  

By operation of N.J.S.A. 34:15-79(a), to the extent these carriers fail
to satisfy their statutory obligation, Fournier Trucking, as the general
contractor, is obliged to provide benefits to any carrier employee who suffers
an injury while providing services under Fournier Trucking’s general contract.

This opinion provides excellent clarity on the relationship
between the terms “independent contractor” and “subcontractor” for purposes of
Section 79.  In effect, the Appellate
Division was saying that for the purposes of Section 79, an independent
contractor can be a subcontractor.  The
case also provides the best discussion of any modern New Jersey case on the
duty of the policy holder to provide accurate and complete information to its workers’
compensation carrier and the ramifications of failing to do so.  This case is unreported but merits
reconsideration by the Committee on Publications.

The post Policy Holder Made Material Misrepresentations To Its Workers’ Compensation Carrier Warranting Finding Of Fraud Under N.J.S.A. 34:15-47.4 appeared first on NJ Workers' Comp Blog.

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