Thought Leadership

In this case, the New Jersey Supreme Court affirmed the Appellate Division’s decision to reverse the trial judge’s decision to vacate the jury verdict and award judgment to Marine Transport, Inc. In doing so, the court considered the application of the multi-factor test in Galvao v. G.R. Robert Construction Co., 179 N.J. 462, 471-73 (2004), to determine if a worker who negligently caused a plaintiff’s work injury is a “borrowed employee” of the plaintiff’s employer. This decision was authored by Judge Sabatino and joined by Chief Justice Rabner and Justices Patterson, Solomon, Pierre-Louis and Wainer Apter. Justice Fasciale did not participate.

The plaintiff was a mechanic for Container Services of New Jersey when he was injured in November 2013. Lawrence Giamella attempted to help the plaintiff move equipment with a forklift and, in doing so, crushed the plaintiff’s foot. The plaintiff collected workers’ compensation benefits from Container Services, but he also filed a personal injury action against numerous defendants, including Marine Transport. The crux of the issue was who employed Giamella at the time of the incident.

Summary judgment was granted for Container Services due to the statutory bar under N.J.S.A. 34:15-8. Marine Transport moved for summary judgment, arguing it was not Giamella’s employer and, though he was on Marine Transport’s payroll, he was a “borrowed employee,” working for Container Services at the time of the incident. This motion was denied. The trial judge also did not rule on Marine Transport’s motion for judgment pursuant to Rule 4:40-1, reserving it for after the jury verdict. Ultimately, the jury awarded damages for the plaintiff. There was an agreement between counsel, so the jury was asked not to resolve the “borrowed employee” question. Rather, counsel agreed that the court would resolve this argument; if the court found in Marine Transport’s favor on the Rule 4:40-1 motion, then Marine Transport would not be liable, and if it did not, then Marine Transport would be liable under the parties’ agreement.

The trial judge ruled in Marine Transport’s favor on the motion, finding Giamella was a “borrowed employee,” and vacated the verdict. The Appellate Division reversed, vacated the directed verdict and reinstated the jury verdict in the plaintiff’s favor. The Supreme Court granted Marine Transport’s petition for certification, limited to whether the court or the jury should determine the “borrowed employee” issue.

The court found that the multi-factor test from Galvao was presumptively for a jury to determine and the court should not get involved unless the evidence was so one-sided. The Galvao test was discussed, with the court noting “control” was the initial question and the three methods to demonstrate same were: (1) the “method of payment”; (2) who “furnishes the equipment”; or (3) the “right of termination.” If control was found, the analysis would move on to the “business-furtherance prong,” or whether a worker was furthering the employer’s business. This could be determined by if the work being done was within the general contemplation of the employer and the employer derived an economic benefit by loaning its employee. 

The court then applied these principles to this instant case. In viewing the trial record in the light most favorable to the plaintiff as the non-moving party, the court found the evidence was not one-sided. As such, the court held the trial judge erred in granting Marine Transport’s motion. While this would generally mean the case would be remanded for a jury to resolve the “borrowed employee” issue, due to the parties’ agreement, as the Rule 4:40-1 motion was denied, the court affirmed the Appellate Division’s decision to reinstate the jury verdict.

_{What’s Hot in Workers’ Comp, Vol. 27, No. 6, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}