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“Special Employee’s” Personal Injury Civil Claim Found Barred By Workers’ Compensation Exclusive Remedy Defense

By on August 14, 2020 in Policy with 0 Comments

In a published Appellate Division decision, Hocutt v. Minda Supply Co., 2020 N.J. Super. LEXIS 201 (App. Div. August 7, 2020), the Appellate Division addressed whether the plaintiff employee (Carlton Hocutt III) qualified as a “special employee” of the defendant Minda Supply Company (“Minda”), whether his claim was barred by the Workers’ Compensation Act (“WCA”), and whether he could sue because the company had committed an intentional wrong.  Hocutt was injured in a forklift accident while working at the defendant Minda’s warehouse through an employee leasing agency.  Ultimately, the Court found that plaintiff qualified as a special employee and that his claim was barred by the exclusive remedy defense of the Workers’ Compensation Act.

Hocutt sued Minda, claiming that the company was negligent in directing him to ride as a passenger on a forklift, in violation of federal workplace safety regulations.  He claimed that the Workers’ Compensation Act (“WCA”) did not apply to him for this accident as to Minda, because he was not employed by Minda, but rather by an employee leasing agency.  Further, he contended that even if he was deemed to be an employee of Minda for purposes of the WCA, he was not barred under this statute from suing Minda because the company had committed an intentional wrong in causing his accident.

Hocutt worked in Minda’s warehouse that stored goods for the dry cleaning industry.  Employees used forklifts to move pallets of supplies.  It was a common practice at Minda for a worker to ride on the forklift, standing on either the front or back of the forklift while it was moving.  It was undisputed that this practice violated federal workplace safety regulations.

Hocutt was working at Minda through the services of an employee leasing agency, Express.  Pursuant to the staffing agreement between Minda and Express, Express would be responsible for paying the loaned workers and Minda would reimburse Express for those wage payments.  The agreement also provided that Minda would “supervise, direct, and control the work” of the Express employees who were loaned to Minda.

On the second day of working at the warehouse, Hocutt was teamed up with a forklift operator, Will.  Will had been assigned to drive forklifts after only several months of employment because of a shortage of forklift operators.  He had minimal training on how to operate forklifts because, allegedly, he had operated forklifts at a prior job.  Will instructed Hocutt to position himself on the back of the forklift that Will was operating.  Unfortunately, after a few minutes, Will inadvertently backed the forklift into an I-Beam.  As a result of the collision, Hocutt suffered a serious leg injury and underwent a skin graft and four surgeries. 

Following the accident, OSHA issued three citations to Minda: for allowing an employee to operate a forklift without proper training and evaluation, for allowing an employee to ride on the forklift and for failing to report the hospitalization of an employee to OSHA within 24 hours.  The first two violations were “serious” and the latter one was considered “other than serious.”

After discovery was complete, the defendant filed for a summary judgment, arguing that Hocutt’s claim was barred by the WCA, which generally provided an exclusive remedy for workplace injuries. That motion was granted by the trial court and the complaint was dismissed. This appeal ensued.

The Appellate Division first had to determine whether Hocutt qualified as a “special employee” of Minda. After considering all the factors under the special employee test, the Court agreed with the trial court in finding that Hocutt was a “special employee” of Minda. Hence, he was subject to the exclusive remedy of workers’ compensation.

Next, the Appellate Division considered Hocutt’s argument that his suit was not barred under the WCA because Minda’s conduct constituted an intentional wrong, an exception to the exclusive remedy defense. After reviewing the applicable case law, the Appellate Division found that Minda’s conduct “was not sufficiently egregious to rise to the level of intentional wrong.” 

The Court cited back to the well-known cases of Millison, Laidlow, Mull, Crippen, and Van Dunk.

The Court pointed out that under Millison, a “virtual certainty” of injury must be established to satisfy the intentional wrong exception.  In Millison, the Supreme Court created a two prong test consisting of a “conduct” prong and a “context” prong.  The Court noted the general test:

[T]o fall under the intentional wrong exception to the general rule that bars employees from suing employees for workplace injuries, a plaintiff must first establish the employer knew that its actions were substantially certain to result in injury or death to the employee.   Plaintiff must further show that 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.

After reviewing the major published cases in this case, the Court found that the present circumstances were closer in facts to Van Dunk (in which the Court found no intentional act), rather than Millison, Laidlow, Mull, and Crippen because there was no deception, no prior accidents, and no prior complaints.  The Appellate Division noted that the cases did not focus on the number of times the wrong act was repeated but rather focused on the aggravating circumstances in which that repetition occurred.  Van Dunk cautioned that “a single egregiously wrong act by an employer might, in a proper circumstances, satisfy the intentional wrong standard.”  The Appellate Division found that, in this statement, the Court “was emphasizing that the egregiousness of the wrong act is more important than the number of times it is repeated.”

In this case, the Appellate Division accepted that there was a recurring practice in Minda’s warehouse to allow workers to stand on moving forklifts.  However, there were no accidents or injuries that had resulted from the unsafe practice until the employee backed into an I-Beam with Hocutt aboard.  The Court noted that the absence of prior forklift accidents at Minda’s warehouse suggested that the unfortunate accident in this case was not a “virtual certainty.”

The Appellate Division stated that the intentional wrong exception “would significantly erode the legislative preference for the workers’ compensation remedy if all a plaintiff has to show to invoke the exception is that the negligent or reckless conduct was a de facto company practice.”  The Court noted that the line between negligent or reckless conduct and intentional wrong must be drawn with caution.  Thus, the Appellate Division found that Hocutt failed to establish that Minda knew that its actions were substantially certain to result in his injury or death.

The Appellate Division interpreted these case precedents “to mean that an employer’s longstanding practice of violating an OSHA regulation does not automatically rise to the level of intentional wrong.  Rather the escalation to intentional wrong generally occurs when the repeated conduct is committed in disregard of prior OSHA citations or other warnings.”

The Court in this case found that there were “no proofs showing that there were prior forklift-related accidents or injuries, prior OSHA violations pertaining to forklift operations, a failure to abate such OSHA violations, or prior complaints from workers about forklift practices.”  Further, the Appellate Division found that there was no evidence that Minda took steps to conceal its violative practice or otherwise deceive safety investigators.

Finally, the Appellate Division noted that given the absence of prior accidents or OSHA citations and the absence of any evidence of concealment, fraud, or deception, the employer’s conduct was less egregious than the conduct in the line of cases which did find an intentional wrong to have been committed.  Accordingly, the Appellate Division found that Hocutt had failed to establish the first prong of the Millison test.

The Appellate Division also found that the plaintiff had failed to satisfy the context prong of the Millison test.  The Court concluded that the plaintiff had failed to show that “his injury and the circumstances of its infliction were more than a fact of life of industrial employment.”  The plaintiff did not dispute the forklift accidents occurred in warehouses.  Despite the facts showing that Minda allowed workers to stand on forklifts to hasten the pace which pallets were loaded and unloaded to enhance productivity and profit and that this unsafe practice appeared to reflect a deliberate decision by warehouse supervisors to expedite the movement of goods within the warehouse, the Appellate Division found that these facts were not enough to “transform the company’s recklessness into intentional wrong within the meaning of the WCA.”  As the Court noted in Millison, “many unsafe workplaces practices are deliberate in the sense that the employers made a business decision to maximize speed and efficiency at the expense of worker safety.”  The Appellate Division found that these decisions are a type of mistake in judgment that is a fact of life in industrial workplaces.

The Appellate Division did not condone Minda’s practices.  In their view, the employer’s response to an accident, regulatory citation, employee complaint, or other explicit warning would provide a useful benchmark of its culpability under the Millson test.  However, in this case, “given the absence of prior accidents or employee complaints, and especially given the absence of fraud, concealment, or deception,” the Court did not believe that Minda’s misconduct was “plainly beyond anything the Legislature intended the WCA to immunize.”  The Appellate Division concluded its decision by stating that “in the final analysis, Minda’s mistake in judgment “was to borrow the Court’s aphorism in Van Dunk, an exceptional wrong, not an intentional wrong.” 

Thus, the Appellate Division affirmed the trial court’s decision to dismiss the complaint, finding that Hocutt’s exclusive remedy rests in workers’ compensation.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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