Hocutt v. Minda Supply Co., 080720 NJSUP, A-4711-18T1

Docket Nº:A-4711-18T1
Opinion Judge:SUSSWEIN, J.S.C.
Party Name:CARLTON HOCUTT III, Plaintiff-Appellant, v. MINDA SUPPLY COMPANY Defendant-Respondent, and MINDA SUPPLY COMPANY, Defendant/Third-Party Plaintiff, v. NATIONWIDE INSURANCE COMPANY d/b/a HARLEYSVILLE WORCESTER INSURANCE CO, Third-party defendants.
Attorney:Joseph M. Cerra argued the cause for appellant (Lynch Lynch Held & Rosenberg, PC, attorneys; Joseph M. Cerra, on the briefs). Lance J. Kalik, argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Lance J. Kalik, of counsel and on the brief; Alfonse R. Muglia, on...
Judge Panel:Before Judges Ostrer, Vernoia and Susswein.
Case Date:August 07, 2020
Court:Superior Court of New Jersey
 
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CARLTON HOCUTT III, Plaintiff-Appellant,

v.

MINDA SUPPLY COMPANY Defendant-Respondent,

and

MINDA SUPPLY COMPANY, Defendant/Third-Party Plaintiff,

v.

NATIONWIDE INSURANCE COMPANY d/b/a HARLEYSVILLE WORCESTER INSURANCE CO, Third-party defendants.

No. A-4711-18T1

Superior Court of New Jersey, Appellate Division

August 7, 2020

Argued telephonically April 20, 2020

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6537-17.

Joseph M. Cerra argued the cause for appellant (Lynch Lynch Held & Rosenberg, PC, attorneys; Joseph M. Cerra, on the briefs).

Lance J. Kalik, argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Lance J. Kalik, of counsel and on the brief; Alfonse R. Muglia, on the brief).

Before Judges Ostrer, Vernoia and Susswein.

OPINION

SUSSWEIN, J.S.C.

Plaintiff, Carlton Hocutt, III, appeals from a grant of summary judgment in favor of defendant, Minda Supply Co. (Minda). Hocutt was injured in a forklift accident while working at Minda's warehouse. He sued Minda claiming the company was negligent in directing him to ride as a passenger on a forklift in violation of federal workplace safety regulations. The trial court dismissed the complaint, ruling that Hocutt's exclusive remedy rests in workers' compensation.

Hocutt contends the trial court erred in applying the New Jersey Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -146. He asserts that he was not employed by Minda but rather by an employee leasing agency. He further contends that even if he were deemed to be an employee of Minda for purposes of the WCA, he is not barred under the statute from suing Minda because the company committed intentional wrong. After reviewing the record in view of the applicable legal principles and the parties' arguments, we reject Hocutt's contentions and affirm the grant of summary judgment.

I.

In September 2017, Hocutt filed a civil complaint against Minda alleging that his injury was caused by the company's negligence. Minda asserted as an affirmative defense that Hocutt's claim is precluded by the WCA, which generally provides exclusive remedies for workplace injuries. Once discovery was completed, Minda moved for summary judgment. After hearing oral argument, the Law Division judge granted Minda's motion for summary judgment, dismissing Hocutt's complaint with prejudice.

II.

Minda operates a warehouse that stores goods for the dry-cleaning industry. Forklifts are used at the warehouse to move pallets of supplies. It was a common practice at the warehouse for a worker to ride on the forklift, standing on either the front or back of the forklift while it was moving. This practice violates federal workplace safety regulations.

Minda uses the services of an employee leasing agency, Express. The staffing agreement between Minda and Express provides that Express is responsible for paying the loaned workers. Minda reimburses Express for those wage payments by agreeing "to pay the charges based on the time card or other mutually acceptable recording method." The staffing agreement specifies that Minda will "supervise, direct, and control the work" of the employees Express loans to Minda. The staffing agreement also authorizes Minda to hire a loaned worker after a set period of time or for an agreed upon fee.

Hocutt registered with Express looking for work. Hocutt initially turned down several work opportunities that were offered by Express, eventually accepting an opportunity to work at Minda's warehouse. Hocutt reported to Minda the next day.

On his second day working at the warehouse, Hocutt was instructed by his supervisor, Rich, to team up with a forklift operator, Will. Rich told Hocutt that Will was "real fast paced" and that Hocutt could "learn a lot from him." Will had worked at Minda for approximately a year.

Minda had assigned Will to drive forklifts after only several months of employment because of a shortage of forklift operators. Will had operated forklifts at a prior job where he had been provided with some informal instruction and attended a certification class. Will never presented Minda with the certification. Minda "took [Will's] word for it" and allowed Will to operate a forklift. Minda provided Will informal instruction on how to operate the machine and allowed him to practice when employees were not busy, and another operator was available to watch.

Hocutt, Will, and Rich observed a forklift pass by. An employee was standing on the forklift as a passenger. Rich pointed to it and told Hocutt, "you are going to get on the forklift like that." Shortly thereafter, Hocutt positioned himself on the back of the forklift that Will was operating. After just a few minutes, Will inadvertently backed the forklift into an I-Beam. Hocutt's leg was seriously injured in the collision and he was taken to a hospital by ambulance. The injury required a skin graft and four surgeries.

Following the accident, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) issued three citations to Minda. The first citation, which was classified as "serious," cited a violation of 29 C.F.R. 1910.178(I)(1)(i) for allowing an employee to operate a forklift without proper training and evaluation. The second citation, which was also classified as "serious," cited a violation of 29 C.F.R. 1910.178(m)(3) for allowing an employee to ride on the forklift. OSHA issued a third "other-than-serious" citation for a violation of 29 C.F.R. 1904.39(a)(2) for failing to report the hospitalization of an employee to OSHA within twenty-four hours.

III.

We begin our analysis by acknowledging certain legal principles that govern this appeal. As a general proposition, a court must grant summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. When reviewing a motion court's grant of summary judgment, an appellate court uses the same standard as the motion court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (citations omitted). First, we must decide whether there was a genuine issue of fact. In re Estate of DeFrank, 433 N.J.Super. 258, 265 (App. Div. 2013) (citations omitted). When reviewing summary judgment, we view the facts "in the light most favorable to the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no genuine issue of fact, then we must decide whether the lower court correctly ruled on the law. Estate of DeFrank, 433 N.J.Super. at 267 (citing Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J.Super. 255, 258 (App. Div. 1987)).

In this case, there does not appear to be a dispute with respect to the pertinent facts. Both parties agree that Minda employees engaged in a practice of riding on forklifts. Accordingly, this case hinges on the trial court's interpretation of the WCA.

In construing that statute, we take note that it "accomplished a 'historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident arising out of and in the course of employment.'" Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449, 458-59 (2012) (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)). Generally, when the parties have accepted the provisions of the Act, "the agreement operates as an employee's surrender of other forms of remedies." Id. at 459 (citing N.J.S.A. 34:15-8).

Hocutt contends the trial court misinterpreted the statute in ruling that it barred him from bringing suit against Minda. He raises two distinct legal arguments in support of that contention: (1) he was not an employee of Minda for purposes of the WCA; and (2) Minda committed "intentional wrong," thereby exempting this case from the exclusive remedy of the WCA. We address each of these contentions in turn.

IV.

The trial court found that Hocutt was a "special employee" of Minda, which was Hocutt's "special employer." Hocutt disputes that determination on the grounds that he did not give "informed consent" to the special employee-employer relationship. We reject that contention.

In Kelly v. Geriatric & Medical Services, Inc., we developed a five-pronged test to assist courts in determining whether a worker is a special employee for purposes of the WCA. 287 N.J.Super. 567, 571-72 (App. Div. 1996). We explained: The applicable, though not exclusive, legal criteria to establish a special employer-special employee relationship involves the following fact-sensitive five-pronged test:

(1) the employee has made a contract of hire, express or implied, with the special employer;

(2) the work being done by the employee is essentially that of the special employer;

(3) the special employer has the right to control the details of the work;

(4) the special employer pays the employee's wages; and

(5) the special employer has the power to hire, discharge or recall the employee.

[Id. at 571-72.] In Kelly, we concluded that the plaintiff who was employed through a staffing agency, like Hocutt, was a "special employee." Id. at 577-78.

The key factor in dispute in this case is whether "the employee has made a contract of hire, express or implied, with the special employer." Id. at 571. Hocutt relies on our decision in Blessing v. T. Shriver & Co. to support his contention that the first prong has not been established. 94 N.J.Super. 426, 436 (App. Div. 1967). Our...

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