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HOLLIDAY v. PERSONAL PRODS. CO.

September 9, 1996

LISA HOLLIDAY
v.
PERSONAL PRODUCTS COMPANY, et al.



The opinion of the court was delivered by: O'NEILL

 Before the Court is the renewed motion for summary judgment of defendant McNeil-PPC.

 On October 2, 1992 plaintiff was injured while operating a Research Concept Maker machine manufactured by Personal Products Company in 1986. She brought this tort action against PPC's corporate successor, McNeil-PPC, which was created when PPC merged with McNeil Consumer Products Company on January 1, 1989. After the merger PPC became an unincorporated division within McNeil-PPC. McNeil-PPC is a subsidiary of Johnson & Johnson.

 At the time of the injury plaintiff was working for Chicopee, a research enterprise of Johnson & Johnson. Plaintiff was initially hired in 1991 by temporary employment agency Manpower, Inc. to work for Chicopee which was at the time a separately incorporated Johnson & Johnson subsidiary. However, on July 1, 1992 three months before plaintiff's injury Chicopee merged into McNeil-PPC and relinquished its separate corporate status.

 Thus at the time of the injury McNeil-PPC was a corporate entity encompassing both the alleged tortfeasor PPC and the employer Chicopee. In fact the research work of both Chicopee and PPC was conducted within the same unincorporated division of McNeil-PPC, Worldwide Absorbent Products and Materials Research.

 Plaintiff received workers' compensation benefits for her injury pursuant to the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 et seq.1 That Act "provides the exclusive remedy against the employer for a work-related injury sustained by an employee. . . . Fundamental to the Act is the premise that by accepting the benefits provided by its schedule of payments, the employee agrees to forsake a tort action against the employer." Ramos v. Browning Ferris Indus. of South Jersey, Inc., 103 N.J. 177, 510 A.2d 1152, 1155 (N.J. 1986). This exclusivity is:

 
'designed to provide an expeditious and certain remedy for employees who sustain work injuries. . . . The employee surrenders his right to seek damages in an action at law in return for swift recovery independent of proof of fault. The employer gives up common law defenses to negligence suits and assumes an absolute liability to provide compensation; in return he is granted immunity from common law negligence suits by his employees.'

 Vega v. Standard Mach. Co., 290 N.J. Super. 434, 675 A.2d 1194, 1196-97 (N.J. Super. App. Div. 1996) (quoting Wilson v. Faull, 27 N.J. 105, 141 A.2d 768, 774 (N.J. 1958)).

 McNeil-PPC has moved for summary judgment on the grounds that it is entitled to this workers' compensation tort immunity because at the time of the injury it was, through its unincorporated division Chicopee, plaintiff's employer. Plaintiff, while conceding that she was an employee of Chicopee, *fn2" asserts that she did not know that "Chicopee was involved in a merger or that Chicopee and McNeil-PPC and/or Personal Products had become part of the same corporation" and believed she "worked only for Chicopee." *fn3"

 I must decide whether this alleged unawareness of her employer's changed corporate identity raises a genuine issue of material fact as to whether McNeil-PPC became plaintiff's employer for the purposes of workers' compensation tort immunity when Chicopee merged into and became an unincorporated part of McNeil-PPC. *fn4"

 Plaintiff asserts that this unawareness is material to McNeil's status under the New Jersey special employment test which is used to determine whether an entity that borrows an employee's services from a general employer such as Manpower is an employer for the purposes of workers' compensation tort immunity. Under that test the borrowing entity becomes a special employer entitled to assert such immunity if the employee: (1) enters an express or implied contract to work for the borrower; (2) performs the borrower's work; and (3) accepts the borrower's right to control the details of the work. Volb v. G.E. Capital Corp., 139 N.J. 110, 651 A.2d 1002, 1004-05 (N.J. 1995). *fn5" If the borrower is a special employer under these criteria payment of workers' compensation benefits by either the general or the special employer "bars the employee from maintaining a tort action against the other for the same injury." Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 551 A.2d 1006, 1007 (N.J. Super. Ct. App. Div. 1988), certif. denied, 556 A.2d 1206 (N.J. 1989); Murin v. Frapaul Constr. Co., 240 N.J. Super. 600, 573 A.2d 989, 992 (N.J. Super. Ct. App. Div. 1990); Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 228 A.2d 711 (N.J. Super. Ct. App. Div. 1967). *fn6" Plaintiff contends that her unawareness that her employer's corporate identity had changed from Chicopee to McNeil-PPC raises a genuine issue of material fact as to whether she entered an implied employment contract with McNeil-PPC as required under the first Volb factor.

 Plaintiff is correct that in applying the special employment test New Jersey courts have required the employee's consent to enter the special employment relationship. Those courts have not, however, considered whether the employee must know the corporate identity of the special employer for whom she agreed to work or whether her consent to work for a borrowing entity is tantamount to consent to work for the corporate entity of which the borrower is a part. Rather, the cases have analyzed only whether the employee agreed to work for an entity other than the general employer, an issue that is undisputed in this case. See Pacenti v. Hoffman-La Roche, Inc., 245 N.J. Super. 188, 584 A.2d 843, 845 (N.J. Super. Ct. App. Div. 1991) (inferring requisite consent from the employee's reporting to borrower's place of business and accepting its supervisors' decisions, policies and training); Murin, 573 A.2d at 991-94 (holding that existence of "deliberate and informed consent" turns on "whether it is understood between [the employee] and his employers that he is to remain in the allegiance of the first [employer] . . . or is to be employed in the business and subject to the direction of the temporary employer"); Chickachop v. Manpower, Inc., 84 N.J. Super. 129, 201 A.2d 90, 95, 96 (N.J. Super. Ct. Law Div. 1964) (finding sufficient consent because employee "knew he would be hired out to special employers, and accepted such employers just as he accepted the general employer" and "intended to have two employers"). The cases applying the implied contract prong of the special employment test thus do not address the issue that arises in this case where plaintiff concededly agreed to work for a borrowing entity other than her general employer Manpower but allegedly did not know the borrowing entity had become an unincorporated part of McNeil-PPC at the time of her injury.

 New Jersey courts have, however, explicitly rejected the notion that an employee's subjective unawareness or misunderstanding of an employer's corporate identity can deprive the employer of the tort immunity that attaches once workers' compensation benefits have been paid. In Taylor v. Pfaudler Sybron Corp., 150 N.J. Super. 48, 374 A.2d 1222 (N.J. Super. App. Div.), certif. denied, 379 A.2d 251 (N.J. 1977), the plaintiff after receiving workers' compensation benefits brought a tort action against Sybron, the corporation whose unincorporated division Ionac employed him. *fn7" He asserted that workers' compensation tort immunity did not bar the action against Sybron because he believed Ionac was his employer and "any relationship with Sybron was never brought to his attention." Id. at 1223.

 The Appellate Division rejected the plaintiff's contention that the defendant corporation's tort immunity depended on whether the plaintiff knew the defendant was his employer. Adopting an objective test of whether the corporate entity "called upon to respond in damages" was "in fact the employer of plaintiff," the Taylor court held that "so long as the employer and the alleged tort-feasor are one, plaintiff is limited to the compensation recovered under the Workers' Compensation Act." 374 A.2d at 1224 (affirming summary judgment for defendant on immunity grounds ...


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