NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4439-11T2

 A-4705-11T2

 A-4713-11T2

ESTATE OF JACK D'AVILA,

by TIAGO D'AVILA,

Administrator ad Prosequendum;

and DENISE ROCHA, individually,

Plaintiffs-Respondents/

Cross-Appellants,

v.

HUGO NEU SCHNITZER EAST; SIMS

HUGO NEU CORPORATION; HUGO NEU

CORPORATION; LYNCH, GIULIANO &

ASSOCIATES, P.A.; JERSEY CITY

MEDICAL CENTER, PATRICIA A. 

SCHRADER, M.D.1; AMY R. CUTSHALL,

R.N.; CHRISTINE PANGILINAN, R.N.;

CONCHITA GARCIA, R.N.; and

LIBERTY SURGICAL ASSOCIATES,

Defendants-Respondents,

and

FEMCO MACHINE COMPANY,

Defendant-Appellant/

Cross-Respondent,

and

RIVERSIDE ENGINEERING,

Defendant,

 

1 Because all claims against Dr. Schrader have been satisfied, she 

did not participate in these appeals.

APPROVED FOR PUBLICATION

August 10, 2015

APPELLATE DIVISION
A-4439-11T2

2

and

HUGO NEU SCHNITZER EAST; SIMS

HUGO NEU CORPORATION; and HUGO

NEU CORPORATION,

Defendants/Third-Party

Plaintiffs-Respondents,

v.

SIMPSON & BROWN, INC.,

Third-Party Defendant/

Fourth-Party PlaintiffRespondent/Cross-Appellant,

v.

AMERICAN HOME ASSURANCE COMPANY,

Fourth-Party DefendantRespondent,

and

WILLIS NORTH AMERICA, INC.

(as successor-in-interest to 

Fleet Insurance Services, Inc.),

Fourth-Party DefendantRespondent.

___________________________________

CONTINENTAL CASUALTY COMPANY,

Plaintiff-Respondent,

v.

AMERICAN HOME ASSURANCE COMPANY,

Defendant-Respondent,

and
A-4439-11T2

3

CRUM & FORSTER SPECIALTY INSURANCE

COMPANY,

Defendant-Appellant,

and

SIMPSON & BROWN, INC.,

Intervenor-Defendant/

Respondent.

___________________________________

CONTINENTAL CASUALTY COMPANY,

Plaintiff-Respondent,

v.

AMERICAN HOME ASSURANCE COMPANY,

Defendant-Appellant,

and

CRUM & FORSTER SPECIALTY INSURANCE

COMPANY,

Defendant-Respondent,

and

SIMPSON & BROWN, INC.,

Intervenor-Defendant/

Respondent.

____________________________________

Argued November 17, 2014 - Decided

Before Judges Sabatino, Simonelli, and 

Guadagno.

August 10, 2015
A-4439-11T2

4

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, Docket 

Nos. L-3208-07 and L-3380-09.

Joseph P. LaSala and Richard J. Williams, Jr., 

argued the cause for appellant Femco Machine 

Company in A-4439-11 (McElroy, Deutsch, 

Mulvaney & Carpenter, LLP, attorneys; Mr. 

LaSala and Michael J. Marone, of counsel; Mr. 

Williams and Mr. Marone, on the briefs).

Michael B. Zerres argued the cause for 

respondents/cross-appellants Estate of Jack 

D'Avila and Denise Rocha, individually, in A4439-11 (Blume, Donnelly, Fried, Forte, Zerres 

& Molinari, PC, attorneys; Mr. Zerres, on the 

briefs).

Scott C. Arnette and Ronald Betancourt argued 

the cause for respondent/cross-appellant 

Simpson & Brown in A-4439-11 (Betancourt, Van 

Hemmen, Greco & Kenyon, LLC and Arnette Law 

Firm, LLC, attorneys; Mr. Arnette, of counsel; 

Mr. Betancourt and Virginia A. Harper, on the 

briefs). 

Gerard M. Green argued the cause for 

respondents Hugo Neu Schnitzer East, Sims Hugo 

Neu Corporation, and Hugo Neu Corporation in 

A-4439-12 (Law Offices of Gerard M. Green, 

attorneys; Mr. Green, on the briefs).

Catherine J. Flynn Tafaro argued the cause for 

respondents Amy R. Cutshall, R.N. and Jersey 

City Medical Center in A-4439-11 (Carroll, 

McNulty & Kull, LLC, attorneys; Ms. Flynn 

Tafaro, of counsel; Brad Baldwin, on the 

brief).

Michael R. Ricciardulli argued the cause for 

respondent Conchita Garcia, R.N. in A-4439-11 

(Ruprecht Hart Weeks & Ricciardulli, LLP, 

attorneys; Mr. Ricciardulli, of counsel and 

on the brief; Sarah J. Gurka, on the brief).
A-4439-11T2

5

Abraham E. Havkins (Havkins Rosenfeld Ritzert 

& Varriale, LLP) argued the cause for 

appellant Crum & Forster Specialty Insurance 

Company in A-4705-11 and as respondent in A4713-11.

Nancy Lem argued the cause for respondent 

Continental Casualty Company in A-4705-11 

(Colliau Elenius, attorneys; Ms. Lem, on the 

brief).

Michael A. Spero argued the cause for 

appellant American Home Insurance Company in 

A-4713-11, and as respondent in A-4439-11 and 

A-4705-11 (Eckert, Seamans, Cherin & Mellott, 

LLC, attorneys; Mr. Spero, of counsel and on 

the brief).

Margaret T. Korgul argued the cause for 

respondent Willis North America, Inc. in A4713-11 (K&L Gates, LLP, attorneys; Anthony 

P. La Rocco, of counsel; Ms. Korgul and 

Matthew S. Sachs, on the brief).

Ryan Milun argued the cause for respondent 

Simpson & Brown, Inc. in A-4713-11 (The 

Killian Firm, P.C., attorneys; Mr. Milun, on 

the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This mammoth set of consolidated appeals and cross-appeals 

involves over a dozen parties. The matter concerns both a wrongful 

death case against multiple defendants tried over four months 

before a jury, and a host of related insurance coverage issues 

decided by the trial court. 

The litigation stems from a workplace accident on a 

construction site, in which a subcontractor's employee was struck 
A-4439-11T2

6

on the head by an unsecured metal ladder and became paralyzed. 

Following that traumatic injury, the worker received negligent 

medical treatment, including the deprivation of sufficient oxygen, 

causing him brain damage. He died three years later. 

The worker's estate filed suit against the job site's owner 

that served as the project's general contractor, several of the 

worker's post-accident medical providers, and various other 

parties. The owner filed separate claims for contractual 

indemnification against both the worker's own employer and against 

an installation subcontractor, alleging that each of them bore

responsibility for the hazard posed by the unsecured ladder. 

Additionally, several insurers and an insurance broker whose 

policies were implicated by the accident sought coverage rulings.

Because the exclusive remedy provision within the worker's 

compensation statute, N.J.S.A. 34:15-8, does not preclude a 

negligent employer's liability for contractual indemnification, 

the trial court allowed counsel for decedent's employer to present 

evidence and arguments at the jury trial. However, the court did 

not allow the jury to consider allocating any percentage of fault 

to the employer on the verdict form, despite the requests of 

several parties, including the employer itself.

The jurors returned a multi-million-dollar verdict, which 

they allocated in percentages among the owner, the installation
A-4439-11T2

7

subcontractor, and one of the defendant medical providers. The 

trial court separately disposed of the related insurance coverage 

issues without conducting any evidentiary proceedings.

Among the myriad issues presented to us, we have been asked 

to consider questions relating to whether, and to what extent, an 

injured worker's employer may participate in a jury trial of an

underlying tort action, in a situation where the factual 

determinations could trigger the employer's duty to indemnify a

defendant in the tort case. 

We hold that the trial court erred here in allowing the 

decedent's employer to participate in the jury trial while

simultaneously disallowing the jury from ascertaining that

employer's percentage of fault, if any, on the verdict form. In 

light of that error, we remand this matter to the trial court to 

consider the need for further proceedings relating to such

potential allocation of fault to the decedent's employer. 

The need for such further proceedings in this case will depend 

upon whether the job site owner is continuing to press its claims 

of contractual indemnification against both the decedent's 

employer and the installation subcontractor. If so, additional 

fact-finding might be required to sort out the priority or division 

of the respective payment obligations of the two subcontractors 

as co-indemnitors. Such supplemental fact-finding shall not, 
A-4439-11T2

8

however, disturb the verdict already obtained by plaintiffs. We 

reject the installation subcontractor's demand for a new jury 

trial on all issues, particularly since that appellant failed to 

object at trial to the employer's omission from the verdict form.

We also remand this matter for the trial court's further 

consideration of certain discrete insurance coverage issues. 

In all other respects, we affirm the trial court's rulings

and the final judgment predicated on the jury's verdict, thus 

denying relief on the plethora of other issues raised on appeal

in the parties' twenty-three briefs.

2

I.

We derive the following pertinent facts from the evidence

adduced during the lengthy jury trial. The trial spanned nearly 

forty intermittent days between October 2011 and January 2012. We 

describe the facts in considerable detail because those details 

are legally significant to many of the assorted issues of 

liability, indemnification, and insurance coverage raised on 

appeal.

The Job Site and the Parties' Relationships

The decedent, Jack D'Avila, was a laborer employed by thirdparty defendant Simpson & Brown, Inc. ("S&B"), a subcontractor on 

 

2 We were informed several days ago that Femco recently reached a 

settlement with plaintiffs, a development which resolves some of 

the issues raised on appeal.
A-4439-11T2

9

a job site in Jersey City. The project involved the installation 

of a 700-foot "mega shredder" at the facility of defendant, Hugo 

Neu Corporation.3 

Hugo Neu is a metal recycling company. At the Jersey City 

location, Hugo Neu processed scrap metal and loaded it onto ships. 

The mega shredder being installed on the site required a concrete 

foundation, referred to in the record as the "mill base" or 

"shredder base." The shredder's motor required a separate concrete 

foundation, referred to in the record as the "motor base."

Although Hugo Neu disputed at trial its actual role concerning 

the project, the proofs reflect that the company served as its own 

general contractor. Hugo Neu obtained the necessary permits, 

contracted with a variety of companies to perform the necessary 

work, created a master schedule, and exercised "general 

supervisory authority" over the project. 

Hugo Neu contracted with decedent's employer, S&B, to serve 

as a subcontractor for concrete foundations and structural work. 

Hugo Neu separately arranged for another subcontractor, defendant 

Femco Machine Company ("Femco"), to assemble and install the 

shredder. Hugo Neu had worked with both S&B and Femco in the 

 

3 The pleadings also identify affiliated companies of this 

defendant, specifically Hugo Neu Schnitzer East and Sims Hugo Neu 

Corporation. We shall refer to these entities collectively as 

"Hugo Neu."
A-4439-11T2

10

past. Another subcontractor, defendant Lynch, Giulano & 

Associates, P.A. ("LGA"), was hired to perform surveying work on 

site.

[At the direction of the court, the published 

version of this opinion omits this portion of 

Part I, which describes the ladder safety 

requirements and practices among the 

construction defendants.]

The Decedent's Accident

The accident occurred on May 18, 2005. The trial testimony 

centered around determining who had placed ladders against the 

motor base in the days leading up to the accident, a time frame 

when Femco was preparing for installation of the shredder. 

[At the direction of the court, the published 

version of this opinion omits Section 1 of 

Part I, which describes the testimony 

regarding the placement of the ladder in the 

days leading up to and on the day of the 

accident.]

2. The Ladder's Impact with Decedent

At approximately 3:45 p.m. on May 18, a ladder that had been 

leaning against the motor base fell and hit decedent on the head. 

Many of the witnesses agreed that the ladder most likely belonged 

to S&B, because Femco did not have ladders that long, and Hugo Neu 

did not provide ladders to the contractors.

Femco's employee John Padchin observed the accident while 

climbing the ladder placed against the mill base. He testified 

that he heard a "scraping" noise and observed the ladder on the 
A-4439-11T2

11

motor base move as a strong "gust of wind" came through. Some 

witnesses recalled that the weather had been nice that day, and 

not particularly windy. However, others recalled it being a windy 

day, and most agreed that the site tended to be windy due to its 

location along the Hudson River.

S&B prepared an incident report, simply noting that the 

accident had occurred and the nature of the accident. Nearly one 

year later, an investigator for S&B prepared a somewhat more 

detailed report indicating that decedent had been working in "a 

shallow trench performing foundation work" at the time of the 

accident. There was a "taller foundation next to the trench." 

Leaning up against the foundation was a twenty-foot extension 

ladder, which was not being used.

According to the report, the ladder belonged to S&B and had 

been used by S&B personnel the previous day. The investigator

noted that "[t]he ladder was tied off at the bottom, but was not 

tied off at the top, since the workers the previous day had 

finished with the ladder and untied it before they came down." 

The report reflects that S&B's project superintendent told the 

investigator it was "not a particularly windy day, but for some 

reason the ladder slipped from its position and came down on 

[decedent]," and "[t]he ladder was still tied at the bottom when 

it fell."
A-4439-11T2

12

[At the direction of the court, the published 

version of this opinion omits this portion of 

Part I, which describes the liability experts' 

competing opinions at trial.]

Decedent's Injuries and Medical Treatment

After he was struck by the ladder, decedent fell down, and 

various workers on the construction site told him to remain where 

he was until medical help arrived. He was conscious and 

communicating, and apologized for getting hurt. The remaining 

workers returned to their work.

Decedent was transported to defendant Jersey City Medical 

Center ("JCMC") for medical treatment. In the emergency room, he 

was able to speak and to move his hands, feet, arms, and legs, 

albeit with difficulty, and with some loss of feeling.

Decedent had suffered spinal fractures at disc levels C2 and 

C7. At level C3-C4, he had suffered bruising and swelling of the

spinal cord and a bulging disc. These injuries were causing 

neurological damage, including partial paralysis, with the right 

side more affected than the left. By the time decedent was seen 

by a neurosurgeon, he could not move his right hand or leg.

The neurosurgeon performed a discectomy, removing the bulging 

disk at C3-C4 to prevent possible worsening of the cord 

compression. He also put in a plate at C3-C4, to stabilize

decedent's spine at that level. The medical records show no 

reported complications with the surgery.
A-4439-11T2

13

Post-surgery, decedent was sent to the surgical Intensive 

Care Unit, where he was under the supervision of defendant Patricia 

A. Schrader, M.D., a trauma surgeon who also was director of the 

unit. Defendant Christine Pangilinan, R.N., was decedent's nurse 

from 7:00 a.m. to 7:00 p.m. on May 19. Defendant Conchita Garcia, 

R.N., was his nurse from 7:00 p.m. on May 19 to 7:00 a.m. on May 

20. Defendant Amy R. Cutshall, R.N., was his nurse from 7:00 a.m. 

to 7:00 p.m. on May 20.

At the start of Nurse Pangilinan's shift, the doctor's orders

were for decedent to receive nothing by mouth ("NPO"). However, 

decedent was later allowed ice chips only. At 10:15 a.m. on May 

19, Dr. Schrader evaluated decedent and ordered that he could have 

clear liquids and one can of a nutritional supplement three times

per day. Dr. Schrader also ordered that decedent be advanced to 

regular food "as tolerated."

As to the paralysis, Dr. Schrader's notes from the May 19 

evaluation reflect that decedent was able to flex both elbows, as 

well as his left foot and left hip. However, decedent was not 

able to flex his right foot or right hip.

On the morning of May 20, Dr. Schrader visited with decedent 

and spoke with Nurse Cutshall about his condition. Dr. Schrader 

noted that decedent's spinal cord injury appeared to be progressing 

to quadriplegia, albeit incomplete. She also noted that decedent 
A-4439-11T2

14

had lost the ability to move his fingers in order to utilize the 

patient-controlled analgesia device (the "PCA").

Dr. Schrader had concerns about decedent possibly 

experiencing respiratory difficulty, so she ordered a baseline 

measure of his arterial blood gas, and that he be observed for 

"increased accessory muscle use" when breathing, which would be 

an early sign of respiratory distress. She did not consider 

intubating decedent at that time, however, because he was breathing 

on his own and had a good cough.

Dr. Schrader stated that she would not intubate a patient 

unless it was necessary for the patient to breathe, or to protect 

an unconscious person's airway. She explained that there were 

risks to intubation, including possibly worsening the spinal cord 

injury with the movements necessary to achieve intubation, as well 

as infection or pneumonia. 

Nevertheless, to minimize the risk of aspiration, Dr. 

Schrader declared decedent NPO based upon swallowing difficulties 

reported and demonstrated by Nurse Cutshall. Dr. Schrader also 

ordered a swallowing evaluation, and that a feeding tube be made 

available for possible placement into the patient.

At 9:55 a.m., about forty minutes after Dr. Schrader had 

completed rounds with decedent, he experienced respiratory 

distress. Nurse Cutshall heard him coughing, so she went to check 
A-4439-11T2

15

on him. Concerned that he may be choking, the nurse suctioned his 

airway, but it did not help. She also called for the doctor, and 

Dr. Schrader returned to decedent's room.

At approximately 10:00 a.m., decedent's oxygen saturation was 

down to 31 percent, whereas most people are at 97 to 100 percent, 

and he had a heart rate of 45 beats per minute, indicating sinus 

bradycardia. Dr. Schrader ordered that a call be placed for 

anesthesia service to intubate decedent, and also prepared to 

intubate him herself if necessary.

At 10:05 a.m., a nurse anesthetist was able to intubate 

decedent on an emergent basis. A note written by Dr. Schrader 

indicated that "blood tinged, beige material" was suctioned from 

decedent's airway at the time of intubation. Dr. Schrader 

testified at her deposition that there were different possible 

sources of the beige material, including mucous from the lung.

On manual ventilation, decedent's oxygen saturation was 

brought up to 100 percent, and his heart rate brought up to 118 

beats per minute. However, he had suffered five-to-seven minutes 

of oxygen desaturation, resulting in "anoxic brain injury."

Decedent's Remaining Life and Demise

Decedent spent the rest of his life in various healthcare 

facilities, and he remained on a ventilator except for one week. 
A-4439-11T2

16

He died in July 2008, at age fifty-one, after he suffered a 

downturn and his family decided to discontinue the ventilator.

In their testimony, decedent's wife and children described 

their losses due to his passing. They presented expert testimony 

on damages, which was rebutted by experts presented by S&B.

The medical experts disagreed as to whether decedent's 

respiratory distress occurred due to damage to his phrenic nerves, 

caused by his spinal cord injury, or due to aspiration. They also 

disagreed as to whether the nurses should have advised Dr. Schrader 

sooner about decedent's difficulties with swallowing and operating 

the PCA, and whether Nurse Cutshall had erred by demonstrating 

decedent's swallowing difficulties during Dr. Schrader's rounds, 

thereby adding more fluids and increasing the risk of aspiration. 

The experts further disagreed as to whether Dr. Schrader had acted 

appropriately in not intubating decedent until he suffered the 

respiratory event, or whether she should have electively intubated 

him earlier, during rounds.

Finally, the medical experts contested whether the initial 

injury or the period of oxygen desaturation had caused decedent's 

complete quadriplegia. They specifically differed as to whether 

the period of oxygen desaturation had caused decedent's permanent 

brain damage, or whether that damage occurred during a later event, 
A-4439-11T2

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when decedent suffered an extremely high fever of over 105 degrees 

as a result of damage to his central nervous system.

II.

The Tort Action

In March 2007, Tiago D'Avila ("Tiago"), then-guardian for his 

father Jack D'Avila, and Denise Rocha, Jack D'Avila's wife, filed 

a complaint in the Law Division in the underlying tort litigation. 

Their complaint was amended multiple times. Ultimately, the tort 

action named as defendants: Hugo Neu; Femco; Riverside Engineering 

("Riverside"); LGA; JCMC; Dr. Schrader; Nurse Cutshall; Nurse 

Pangilinan; Nurse Garcia; and Liberty Surgical Associates 

("Liberty Surgical"), one of Dr. Schrader's employers. 

Plaintiffs asserted claims of construction negligence and 

medical malpractice, wrongful death, and a loss of consortium 

claim for Rocha. Riverside was later dismissed from the case on 

summary judgment, a dismissal that no one contests on appeal.

Defendant Hugo Neu filed a cross-claim against defendant 

Femco arising out of their contractual relationship. Hugo Neu 

also filed a third-party complaint against S&B for contribution 

and indemnification, and for breach of contract. 

S&B denied liability and asserted that all claims for 

contribution were barred by the exclusive remedy provision of the

Workers' Compensation Act ("the WCA"), N.J.S.A. 34:15-8. S&B also 
A-4439-11T2

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asserted a counterclaim and cross-claims for contribution and 

indemnification.

S&B filed a fourth-party complaint against its insurer, 

American Home Assurance Company ("American Home") and Willis North 

America, Inc., as successor in interest to Fleet Insurance 

Services, LLC ("Willis"). S&B alleged breach of fiduciary duty 

and negligence against Willis, its insurance broker, for failing 

to obtain the coverage S&B had requested. S&B also asserted breach 

of contract and declaratory judgment claims against American Home, 

seeking primary and non-contributory insurance coverage for Hugo 

Neu under its policy.

The Declaratory Judgment Coverage Actions

In a related action, Hugo Neu's insurer, Continental Casualty 

Company ("Continental"), filed a complaint for declaratory 

judgment against American Home and Femco's insurer, Crum & Forster 

("C&F"), seeking a declaration that those two insurance companies 

were responsible for providing coverage for defense and indemnity 

to Hugo Neu in the underlying litigation.

Both American Home and C&F asserted cross-claims against each 

other and counterclaims against Continental. S&B intervened as a 

defendant in the coverage action and filed an answer with crossclaims.
A-4439-11T2

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Pretrial Motions and Proceedings

On February 5, 2010, the trial court ruled on a summary 

judgment motion filed by Continental. The court issued an oral 

opinion, ruling that Hugo Neu was an additional insured under both 

the American Home and C&F policies. In that same ruling, the 

court consolidated the underlying tort case with the declaratory 

judgment action. Several days later, the court entered an order 

granting summary judgment to Continental as to the discrete issue 

of Hugo Neu's additional insured status, and consolidating the two 

cases.

After Continental moved again for summary judgment on 

different grounds, the court4 issued an oral opinion on June 9, 

2010, ruling that both American Home and C&F were responsible for 

providing primary, non-contributing insurance to Hugo Neu.

On July 23, 2010, the second judge ruled on several other 

pretrial motions. As it relates to the present appeals, the court: 

(1) issued orders consistent with the June 9, 2010 rulings granting 

summary judgment to Continental against American Home and C&F, 

requiring them to "provide primary and non-contributing insurance 

coverage (both defense and indemnification) up to the full limits 

of coverage called for" pursuant to the construction contracts 

 

4 A different judge ("the second judge") heard this particular 

motion.
A-4439-11T2

20

between Hugo Neu and, respectively, S&B and Femco; and (2) 

dismissed claims against S&B, except that it required S&B to 

provide "a complete defense and full indemnification" to Hugo Neu 

pursuant to their contract, "so long as [Hugo Neu] was not found 

to be solely responsible for Jack D'Avila's accident[,]" and 

providing "that this contractual indemnification provision between 

Hugo [Neu] and [S&B] shall not be triggered until the insurance

coverage provided by [S&B] has been exhausted." American Home and 

C&F moved for reconsideration, which was denied.

In the meantime, Continental moved for the appointment of 

defense counsel and to compel American Home and C&F to pay Hugo 

Neu's defense fees and expenses. By order dated January 7, 2011, 

the court denied that motion without prejudice.

After pretrial conferences, a third successive judge who was 

assigned to this case ("the trial judge") heard and decided various 

motions in limine. Among other things, the judge granted 

plaintiffs' application to bar argument that decedent was 

comparatively negligent and denied a motion to preclude S&B from 

participating in the litigation. The judge reserved decision on 

the question of whether the jury could consider S&B's negligence.

The Trial and The Verdict

Before the trial began, plaintiffs' counsel renewed his 

objection to the court allowing the jury to consider the negligence 
A-4439-11T2

21

of S&B. The court clarified that the parties could refer to S&B's 

negligence in their opening statements to the jury, as it related

to the question of whether the negligence of the "construction 

defendants" (i.e., Hugo Neu, Femco, and LGA) was a proximate cause 

of decedent's injuries, but the jury would not be asked to assess 

the comparative negligence of S&B on the verdict sheet. 

Maintaining its prior ruling, the court denied a motion by Dr. 

Schrader and JCMC to disallow S&B's participation at trial.

At the close of evidence, the parties made a variety of 

motions, including motions for directed verdict, which the court 

denied. The court also again considered whether S&B should be 

placed on the verdict sheet, and determined that it should not. 

S&B renewed its motion for a directed verdict, which the court 

denied.

The jury found that Hugo Neu and Femco were each negligent, 

and that their negligence was a proximate cause of decedent's 

injury. The jury found no negligence on the part of LGA. With 

respect to the job site accident, the jury allocated 75% liability 

to Femco and 25% liability to Hugo Neu.

As for the medical defendants, the jury concluded that Dr. 

Schrader, Nurse Cutshall, and Nurse Garcia were negligent. 

However, the jury also found that only Dr. Schrader's negligence

had both increased the risk of harm posed by decedent's pre-
A-4439-11T2

22

existing condition, and had been a substantial factor in causing 

his ultimate injury. The jury concluded that Nurse Cutshall's and 

Nurse Garcia's negligence had increased the risk of harm, but had 

not been a substantial factor in causing decedent's ultimate 

injury. The jury found no negligence on the part of Nurse 

Pangilinan.

Finally, the jury specifically found that 77% of decedent's 

ultimate injury would have occurred even if the medical treatment 

had been proper. Thus, it assessed Dr. Schrader as the cause of 

23% of decedent's injury.

The net effect of these determinations, as molded by the 

court, was to hold Femco 57.75% liable for the judgment, Hugo Neu 

19.25% liable, and Dr. Schrader 23% liable.

As to damages, the jury awarded $2,249,668 in medical 

expenses, $152,196 in lost income, and $3,800,000 in pain, 

suffering, disability, impairment, and loss of enjoyment of life. 

Decedent's wife (Rocha) was awarded: $50,000 for the loss of 

consortium; $54,397 in past losses; and $334,150 in future losses. 

Decedent's children (daughter Tienne and son Tiago) were each 

awarded: $49,417 in past losses and $303,559 in future losses.

Finally, the jury concluded that Hugo Neu and Femco had not

proven that Dr. Schrader's negligence was an intervening, 

superseding cause of decedent's ultimate harm.
A-4439-11T2

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Post-Trial Motions

After several parties filed post-trial motions, the trial 

judge issued a written letter opinion dated April 12, 2012. In 

that decision, the judge reaffirmed the pretrial rulings that 

obligated American Home and C&F to provide Hugo Neu with primary, 

non-contributing insurance, and required those insurers to pay the 

judgment against Hugo Neu. The judge also denied Femco's motions 

to dismiss Hugo Neu's claim against it for contractual 

indemnification, and further denied Femco's motion for judgment 

notwithstanding the verdict or, alternatively, a new trial. 

The judge further denied Dr. Schrader's motion to mold the 

verdict so that only the so-called "construction defendants" the 

jury had found to be at fault (i.e., Hugo Neu and Femco) were

liable. In addition, the judge required Femco to indemnify Hugo 

Neu pursuant to their contract; and suspended prejudgment interest 

on two-thirds of the award for medical expenses.

The Final Judgment, As Amended

The court entered an initial final judgment, in accordance 

with the verdict and its post-trial rulings, and entered orders 

on the post-trial motions, consistent with its written opinion. 

Pursuant to the judgment, the total award, with prejudgment 

interest, amounted to $8,534,726.27.
A-4439-11T2

24

Meanwhile, the court granted Continental's motion for payment 

of interim defense fees and expenses, which was opposed by C&F and 

American Home.

On June 11, 2012, the court entered an amended judgment, 

adding modest taxed costs of $1,230, increasing the aggregate 

judgment to $8,535,956.27, with $4,929,514.75 allocated to Femco, 

$1,643,171.58 allocated to Hugo Neu, and $1,963,269.94 allocated

jointly to Dr. Schrader, Liberty Surgical, and JCMC.

The trial court thereafter entered a second amended judgment, 

requiring American Home and C&F to provide primary and noncontributory coverage for the judgment against Hugo Neu, and 

requiring C&F to provide primary and non-contributory coverage for 

the judgment against Femco.

The Myriad Appeals

The trial court stayed the judgment, conditioned upon the 

posting of a supersedeas bond. Appeals were subsequently filed 

by, respectively: plaintiffs, Femco, S&B, C&F, and American Home. 

Plaintiffs subsequently settled with Dr. Schrader and her 

employers, Liberty Surgical and JCMC.

III.

Femco, which bears the largest share of liability under the 

jury's verdict, raises on appeal several interrelated issues of 

negligence and contractual indemnification.
A-4439-11T2

25

Specifically, Femco argues that the trial court erred by: 

(1) allowing decedent's employer, S&B, to participate in the trial 

while disallowing the jury to consider S&B's alleged negligence;

(2) ruling that Femco was obligated to indemnify Hugo Neu for Hugo 

Neu's own negligence. Femco further argues that the jury's 

apportionment of fault against it was against the weight of the 

evidence. The remaining issues raised on appeal by Femco were 

resolved through its recent settlement with plaintiffs.

Meanwhile, the issues raised by S&B in its cross-appeal 

include an argument that the trial court erred by denying S&B's 

motion for partial summary judgment, and holding that S&B is liable 

to Hugo Neu for contractual indemnification.

The first of these issues —— concerning the appropriate role 

of decedent's employer in the jury trial —— raises important 

questions of law and procedure about the employer's inclusion or 

omission from the verdict form. We devote the following analysis 

in this published portion of our opinion to that thorny issue. 

Because these issues concerning the employer's role at trial

are closely intertwined with the issues of negligence liability 

and contractual indemnification that also have been raised, we 

include them within our analysis in this section of the opinion

as well.
A-4439-11T2

26

A.

The WCA, N.J.S.A. 34:15-1 to -142, "represents the bargain 

that was struck between employers and employees concerning 

workplace injuries, whereby employers shoulder the expense of 

workers' injuries arising out of the performance of work duties." 

Basil v. Wolf, 193 N.J. 38, 53 (2007). The WCA "provide[s] a 

method of compensation for the injury or death of an employee, 

irrespective of the fault of the employer or contributory 

negligence and assumption of risk of the employee." Harris v. 

Branin Transp., Inc., 312 N.J. Super. 38, 46 (App. Div.), certif. 

denied, 156 N.J. 408 (1998).

As part of the bargain struck by the Legislature in the WCA, 

N.J.S.A. 34:15-8 directs that an employer may not be sued by an 

employee or an employee's surviving relatives for negligence that 

caused injury or death to the employee. Instead, workers' 

compensation is the exclusive remedy, absent proof of an 

intentional wrong. Ramos v. Browning Ferris Indus. of S. Jersey, 

Inc., 103 N.J. 177, 183 (1986); McDaniel v. Man Wai Lee, 419 N.J. 

Super. 482, 489-90 (App. Div. 2011). Thus, plaintiffs in this 

case could not proceed with a claim against S&B, decedent's 

employer.

Case law establishes that the WCA does not, however, preclude 

an injured employee from pursuing claims against third-party 
A-4439-11T2

27

tortfeasors. Instead, "an employee retains the right to pursue 

available common-law remedies for liability against third-parties, 

so long as recoveries are not duplicated." McDaniel, supra, 419 

N.J. Super. at 491 (citing Schweizer v. Elox Div. of Colt Indus., 

70 N.J. 280, 287-88 (1976)). Thus, plaintiffs could and did pursue 

claims against alleged other tortfeasors, including Femco and Hugo 

Neu.

Consistent with the WCA's exclusive remedy proviso, 

defendants could not seek contribution from S&B under the Joint 

Tortfeasors Contribution Law ("the JTCL"), N.J.S.A. 2A:53A-1 to -

5. "Because the employer cannot be a joint tortfeasor, it is not 

subject to the provisions of the [JTCL], and a third-party 

tortfeasor may not obtain contribution from an employer, no matter 

what may be the comparative negligence of the third party and the 

employer." Ramos, supra, 103 N.J. at 184; accord Stephenson v. 

R.A. Jones & Co., 103 N.J. 194, 199 (1986); McDaniel, supra, 419 

N.J. Super. at 492-93.

Hence, in the context of a plaintiff-employee's negligence 

claims against other tortfeasors relating to workplace injuries, 

the jury cannot be asked to apportion fault to the plaintiff's own

employer, even if that seems like "a more equitable manner of 

presenting th[e] matter to the jury[.]" Jarrett v. Duncan Thecker 
A-4439-11T2

28

Assocs., 175 N.J. Super. 109, 115 (Law Div. 1980); accord

Stephenson, supra, 103 N.J. at 199.

On the other hand, "indemnification of a third party by an 

employer pursuant to an express contract does not disturb the 

delicate balance struck by the Legislature in the WCA. Nothing 

in the WCA precludes an employer from assuming a contractual duty 

to indemnify a third party through an express agreement." Ramos, 

supra, 103 N.J. at 191. Accord Mautz v. J.P. Patti Co., 298 N.J. 

Super. 13, 19-21 (App. Div.), certif. denied, 151 N.J. 472 (1997); 

Port Auth. of N.Y. & N.J. v. Honeywell Protective Serv., Honeywell, 

Inc., 222 N.J. Super. 11, 19-20 (App. Div. 1987).

Thus, it was permissible here for Hugo Neu to seek 

indemnification from S&B, pursuant to their contract, for any of 

plaintiffs' damages caused by S&B or Hugo Neu. The only legal bar 

to such a claim would be if Hugo Neu were found 100% liable, 

because the Legislature has disallowed indemnification agreements 

imposing liability where the damages in question were caused by 

the indemnitee's "sole negligence." See N.J.S.A. 2A:40A-1.5

 

5 N.J.S.A. 2A:40A-1 states:

A covenant, promise, agreement or 

understanding in, or in connection with or 

collateral to a contract, agreement or 

purchase order, relative to the construction, 

alteration, repair, maintenance, servicing, 

or security of a building, structure, highway, 
A-4439-11T2

29

1.

Published cases in New Jersey have provided mixed signals 

about how the court should treat an employer named as a thirdparty defendant, for contractual indemnification purposes, in a 

tort action brought by an injured employee who has demanded a 

trial by jury. In particular, the published cases have not been 

uniform concerning whether the employer should be permitted to 

participate in the jury trial and, if so, whether and how the 

employer's alleged negligence should be addressed in the jury 

charge and in the verdict form.

In White v. Newark Morning Star Ledger, 245 N.J. Super. 606 

(Law Div. 1990), the plaintiff, an employee of Colin Service

Systems, Inc. ("Colin"), was injured while working on the premises 

of defendant Newark Morning Star Ledger ("Ledger"). Id. at 608. 

 

railroad, appurtenance and appliance, 

including moving, demolition, excavating, 

grading, clearing, site preparation or 

development of real property connected 

therewith, purporting to indemnify or hold 

harmless the promisee against liability for 

damages arising out of bodily injury to 

persons or damage to property caused by or 

resulting from the sole negligence of the 

promisee, his agents, or employees, is against 

public policy and is void and unenforceable; 

provided that this section shall not affect 

the validity of any insurance contract, 

workmen's compensation or agreement issued by 

an authorized insurer.

[(Emphasis added).]
A-4439-11T2

30

Colin agreed in its contract with Ledger to indemnify Ledger for 

any injury or death "in any way relating to the performance by 

Colin . . . [of the contract] . . . except for such injury . . . 

due to the affirmative negligent acts of Ledger[.]" Id. at 610. 

The plaintiff sued only Ledger, alleging negligence, and Ledger 

filed a third-party complaint against Colin for a defense and 

indemnification. Id. at 609. Colin moved for summary judgment 

to dismiss Ledger's third-party complaint, and the Law Division 

judge denied that motion. Id. at 609, 613.

The Law Division judge in White recognized that if both Ledger 

and Colin were found to be negligent and to have proximately caused 

the accident, then "Ledger as the third-party tortfeasor [would]

be solely responsible" for the plaintiff's injuries. Id. at 611. 

Hence, the case required an allocation of fault as between Ledger, 

the defendant/indemnitee, and Colin, the third-party 

defendant/indemnitor. Ibid. The judge further noted that there 

was a genuine issue, at least on the facts presented in the summary 

judgment record, as to "whether the cause of [the] plaintiff's 

injury was solely caused by Ledger's negligence." Id. at 613.

The judge in White further concluded that, in deciding "how 

best to allocate the liability as between Ledger, to the extent 

that liability results from Ledger's affirmative negligent acts, 

and Colin[,]"
A-4439-11T2

31

[t]he logical and most efficient means of 

achieving that result will be by proceeding 

as this case is presently structured, with 

both Ledger and Colin as parties. That will 

enable the same jury to fix the damages due 

from Ledger to [the plaintiff], while also 

fixing the amount due to Ledger pursuant to 

the indemnification provisions of the 

[contract].

[Id. at 611.]

The judge added that "[a]ny claimed confusion between [the 

plaintiff's] right to recover from Ledger and Ledger's right to

recover from Colin can be avoided by instructions and 

interrogatories to the jury." Id. at 613. The judge stopped 

there, however. He did not indicate exactly how the jury should 

be instructed, or how the special interrogatories on the verdict 

form should be framed.

Our own court grappled with similar issues four years later 

in Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 

134 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996). The 

plaintiff in Kane was a construction worker who was injured on the 

job, and he sued Hartz Mountain Industries, Inc. ("Hartz"), the 

general contractor, and others, alleging negligence. Ibid. The 

plaintiff's employer, Eastern Steel Erectors ("Eastern"), had 

agreed to indemnify the steel fabricator with whom it had 

contracted, Howell Steel, Inc. ("Howell"), "and the 'owner' of the 

project from any losses or claims arising out of Eastern's work 
A-4439-11T2

32

on the project." Id. at 135. Therefore, Howell joined Eastern 

as a third-party defendant, seeking indemnification pursuant to 

their contract. Ibid.

The trial judge in Kane allowed Eastern

to "participate" in the jury trial of 

plaintiff's case [but not present closing 

arguments], but he ruled that Eastern's 

negligence would be submitted to the jury only 

if the jury first returned a verdict finding 

that neither the Hartz defendants nor [another 

defendant] were negligent, and that Howell was 

100% negligent. In that event, the court 

would require the jury to decide whether any 

negligence was attributable to Eastern, in 

order to determine the enforceability of the 

Eastern-Howell indemnification agreement.

[Id. at 146.]

Having been so instructed, the jury returned a no-cause verdict. 

Id. at 136.

On the plaintiff's appeal in Kane, we concluded there had 

been error in the jury charge on the effect of Occupational Health 

and Safety Administration ("OSHA") regulations that warranted 

reversal. Id. at 140-44. We also found reversible error in the 

trial court's treatment of Eastern. Id. at 144-47.6 We observed 

that "it was neither necessary nor appropriate to permit Eastern 

to participate in the presentation of [the] plaintiff's case." 

 

6 We rejected the plaintiff's separate contentions of error on an 

evidentiary issue and regarding comparative negligence, see id.

at 147-51, which are not pertinent here.
A-4439-11T2

33

Id. at 146. Given that the nature of the allegations in the case 

involved "industry-wide or regulatory safety standards," we 

concluded that Eastern "would not be prejudiced by a separate 

trial on the indemnification issue." Ibid. 

Hence, we ordered in Kane that, on remand, "trial of the 

third-party claim should be severed, as unquestionably any 

liability of Howell is not so independent of the failure of Eastern 

to abide by safety standards as to bring about the result that 

Howell might be held liable without a similar finding of fault on 

the part of Eastern." Ibid. We also observed that "[i]n any 

event, Eastern, merely by reason of its status as indemnitor of 

Howell, should not be accorded the advantage of participating at 

trial. A bare agreement to indemnify does not carry with it the 

obligation to defend, and it does not provide a right to control 

the litigation." Id. at 146-47 (emphasis added). In making this 

observation, we did not expressly repudiate White, a case which 

we noted earlier in the opinion had been relied upon by the trial 

court. Id. at 136.

Several defendants in Kane, including Hartz, Howell, and 

Eastern, petitioned for and were granted certification by the 

Supreme Court. The Court affirmed our disposition in Kane, 

"substantially for the reasons expressed" in the published 

opinion. Kane, supra, 143 N.J. at 142. In doing so, the Court 
A-4439-11T2

34

provided no additional commentary and did not shed any further 

light on the employer-participation question. Ibid.7 

A year after Kane, we confronted similar issues of 

indemnification in Bradford v. Kupper Associates, 283 N.J. Super.

556 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). In 

that case, the plaintiffs were employed by Agate Construction 

Company ("Agate"). Id. at 563. One plaintiff was killed, and 

another injured on the job when both inhaled poisonous gas in the 

Tuckerton sewer system. Ibid. They sued the Tuckerton Borough 

Municipal Utilities Authority ("TMUA"), and Kupper Associates 

("Kupper"), the project engineer, with Agate named a third-party

defendant based upon its contractual duty of indemnification. 

Ibid. The jury returned a no-cause verdict, which we affirmed on 

appeal. Id. at 563-64. However, we reversed the court's pretrial 

ruling that Agate was not required to indemnify Kupper and the 

TMUA. Id. at 564, 582-86.

Construing the indemnification provision within the

construction contract in Bradford, we held that the contract

"clearly did not require Agate to indemnify only for its own 

negligence," but rather imposed a broader obligation. Id. at 584. 

On the other hand, we recognized that the agreement did not require 

 

7 The Court's very recent discussion of other aspects of Kane in 

Fernandes v. DAR Development Corp., __ N.J. __ (2015), did not 

address the employer-participation issue.
A-4439-11T2

35

Agate to indemnify either TMUA or Kupper "solely based upon their 

exclusive negligence." Ibid. We also were persuaded that the 

plaintiffs' claims in Bradford "arose or resulted from" the work, 

as was required under the contract to trigger such a duty to 

indemnify. Id. at 585.

Turning to the troublesome question of the appropriate role 

of the plaintiffs' employer, Agate, in the fact-finding process,

we suggested in Bradford that Agate might be permitted to 

participate in the trial. We ultimately did not reach that 

question conclusively, however, because of the distinctive 

procedural posture in which the case had been litigated and the 

appeal had arisen. Instead, we enforced Agate's contractual duty 

to indemnify TMUA, without requiring any further factual findings

on remand by a jury or otherwise:

The matter may be best resolved, as TMUA and 

Kupper sought here, by keeping the indemnitor 

in the case on the indemnification claim. But 

we need not now decide what the judge should 

have done had he denied Agate's motion. 

Rather, we have to determine what we must do 

in light of the fact that he granted the 

motion, and we must do so in view of the 

established record. Of particular importance 

are the [jury's] determinations that neither 

TMUA nor Kupper were found liable, although 

Kupper was found to be negligent.

Here, Agate chose not to participate by 

moving for a dismissal of the third-party 

claims. Rather, it sought to be relieved of 

an obligation to become involved in the trial 

proceedings.
A-4439-11T2

36

In these circumstances, taking account of 

the proofs that Agate violated OSHA 

regulations, and given a jury verdict finding 

neither defendant liable for plaintiffs' workrelated injuries, we are unprepared to permit 

Agate to re-litigate the issue of negligence 

or whether either TMUA or Kupper can be said 

to be solely negligent.

[Id. at 586 (emphasis added).]

Thus, under the particular circumstances presented in Bradford, 

we only remanded the case for "consideration of all the issues 

regarding attorneys' fees and costs for which TMUA and Kupper are 

entitled under the indemnification clause." Id. at 587. The 

panel's comment in Bradford about how the participation question 

"may be best resolved," id. at 586, although it is merely dicta, 

arguably suggests a willingness to reconsider Kane's declared 

prohibition on an employer/indemnitor's participation in the 

negligence trial. We are mindful, however, that the panel's 

comment in 1995 about that subject preceded the Supreme Court's 

1996 unelaborated affirmance of Kane. We also are mindful that 

our opinion in Bradford did not discuss Kane or, for that matter, 

White, regarding the participation issue.

In a later tort case that we reviewed on appeal, Leitao v.

Damon G. Douglas, Company, 301 N.J. Super. 187 (App. Div.), certif. 

denied, 151 N.J. 466 (1997), we noted there that the Law Division

had severed at trial a defendant general contractor's third-party 
A-4439-11T2

37

complaint for contractual indemnification against the plaintiff's 

employer. Id. at 190. After the jury found the contractor 51% 

negligent and the employee 49% negligent, the trial court addressed

the indemnification questions. The court ruled that the 

plaintiff's employer was obligated to fully indemnify the 

defendant, despite the plaintiff's comparative fault. Id. at 190-

91. The court did so because the accident "arose out of" the 

employer's subcontract and was not caused by the defendant 

indemnitee's "sole negligence." Id. at 190, 195. Our appellate 

opinion in Leitao did not consider, however, whether the employer 

should have been permitted to participate in the jury trial, or 

whether, in retrospect, the severance of the indemnification 

issues was proper. Our opinion did not cite to Kane or White and 

only cited Bradford with regard to a different issue. Id. at 192.

This line of published cases arguably leaves some residual 

uncertainty about the proper way to proceed in these jury trial 

situations where a tort defendant has a fact-dependent claim for 

contractual indemnification against the plaintiff's employer, and 

about the breadth of the approach we adopted in Kane. We are now 

asked to consider in the present case —— one of truly massive 

scope —— whether the impetus for a unitary proceeding here is 

stronger than it was in Kane. 
A-4439-11T2

38

The dimensions of Kane are distinguishable from the present 

case, which is not just limited to construction accident defendants 

and negligence claims but also includes medical malpractice 

defendants and claims. Here, unlike in Kane, there was no 

significant risk that the employer, S&B, would "control the 

litigation." Kane, supra, 278 N.J. Super. at 147. In essence, 

S&B was, metaphorically, another fish in a very large pond. 

The sheer number of defendants and claims in this case compels

us to consider whether the approach adopted in Kane should be 

inflexibly followed in large-scale cases, or whether, conversely, 

the interests of judicial efficiency should take precedence and 

warrant an exception to Kane.

2.

A few other state courts and treatise writers have grappled 

with this perplexing issue. Our research has identified several 

instances in which the plaintiff's employer took part in the jury 

trial of the tort case, despite the workers' compensation laws of 

the applicable state, in order to adjudicate third-party claims

brought by a tort defendant against that employer for 

indemnification.8

 

8 See, e.g., Giguere v. Detroit Edison Co., 319 N.W.2d 334 (Mich. 

Ct. App. 1982) (allowing such indemnification claims to be tried 

before the jury along with the plaintiff employee's negligence 

claims against the defendant indemnitee, affirming the trial 
A-4439-11T2

39

On the other hand, some jurisdictions have ruled that, under 

an express contract of indemnity running from a plaintiff's 

employer to a third party, "the third party cannot insist that the 

employer and the employer's insurer be joined in the plaintiff's 

action for purposes of enforcement of the right of indemnity." 11

Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law

§ 121.04[5] (Matthew Bender, Rev. Ed. 2014) (emphasis added)

(citing Gibbs v. Carolina Power & Light Co., 144 S.E.2d 393 (N.C. 

1965) and Baldwin Co. v. Ceco Corp., 659 S.W.2d 941 (Ark. 1983)). 

The Larson treatise recommends that "[s]ince the indemnity 

claim is by definition a separate legal cause, and, unlike the 

employer's contributory negligence, is not intertwined with the 

tortious incident itself, every precaution should be taken to see 

 

court's denial of the employer's severance motion seeking a 

separate trial on the indemnification issues); Frederickson v. 

Alton M. Johnson Co., 402 N.W.2d 794 (Minn. 1987) (permitting the 

negligence and the indemnification issues to be tried together, 

but granting a directed verdict to the employer before submitting 

the case to the jury); Severino v. Schuyler Meadows Club, 639 

N.Y.S.2d 869 (N.Y. App. Div. 1996) (affirming a judgment following 

a combined jury trial on negligence and indemnification issues, 

in which the jury found the defendant/indemnitee general 

contractor 20% at fault for the accident and the plaintiff's 

employer 80% at fault); Berardi v. Getty Ref. & Mktg. Co., 435 

N.Y.S.2d 212 (N.Y. Sup. Ct. 1980) (similarly involving a combined 

jury trial). By contrast, in Levine v. Shell Oil Company, 321

N.Y.S.2d 81 (N.Y. 1971), the parties stipulated that the 

plaintiffs' negligence claims against the defendant would be tried 

before a jury, and that the defendant's claims for indemnification 

against the plaintiffs' employer were to be separately resolved 

by the trial judge alone. Id. at 84.
A-4439-11T2

40

that the employee's own . . . rights are not prejudiced by the 

interjection of this [indemnity] factor into his or her case." 

Ibid. "This kind of tangle is at least partly avoided by [an 

approach] which sees to it that the first step in the process, the 

action by the employee plaintiff, goes forward without the 

complicating presence of the parties and issues involved in the 

indemnity problem." Id. at § 121.04[7] (emphasis added). 

That said, the Larson treatise further recognizes that the 

problem cannot always be "easily sidestepped," and that there can 

be circumstances in which the negligence and indemnity issues 

might need to be tried together. Ibid. As an illustration, the 

treatise referred to situations in which an insurer for the 

employer/indemnitor would not provide coverage for that obligation 

unless the employer's negligence is proven to have caused injury. 

In that scenario, the employer's carrier "would have an interest 

in proving that the employer had not in fact negligently 

contributed to the employee's injuries." Ibid.

3.

The preferred solution to this quandary concerning the 

employer/indemnitor's proper role at trial, at least in a case 

with large dimensions like the present one, is by no means obvious. 

There are competing policies to consider. 
A-4439-11T2

41

On the one hand, we recognize the important workers' 

compensation policies that underlie the exclusive remedy feature 

of the WCA. We also are mindful of the related desire not to 

entangle an injured worker's employer indiscriminately in 

negligence actions that the employee brings against other 

tortfeasors. Those concerns seemingly weigh in favor of holding 

separate trials or hearings on indemnification issues. 

On the other hand, our system of justice also favors 

consistency of outcomes, efficiency, and the avoidance of the 

needless consumption of time and resources to litigation. See, 

e.g., Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006); 

State v. Gonzalez, 75 N.J. 181, 190, 193 (1977). Those offsetting

considerations weigh in favor of attempting to resolve indemnity 

issues, where possible, within the same trial or before the same 

fact-finder.

We suspect that, in many instances, such as the present case, 

a general contractor or project owner routinely will insist on its 

subcontractors entering into broad indemnification agreements that 

strive to insulate the owner or general contractor from liability 

when one of the subcontractors' employees is injured on the job 

site. Depending on the contractual language utilized, the proper 

application of those indemnity agreements may require factual

findings as to: whether the employee's injury "arose out of" the 
A-4439-11T2

42

work encompassed by the indemnity contract; whether the worker's 

employer was at least in part at fault for the accident; and 

whether the defendant indemnitee was not itself 100% at fault. 

These factual issues can be very closely intertwined with the 

liability proofs and the findings that a jury must make in the 

underlying negligence case. 

Where the parties in the negligence case have not agreed to 

a bench trial, the jury's paramount function as fact-finder 

generally ought to include those factual issues relative to 

contractual indemnification. It could be exceedingly difficult

for a trial judge (who would not, of course, be privy to the jury's 

deliberations) to attempt to adjudicate the proofs in an indemnity 

proceeding in a manner that would respect the jury's findings but 

still resolve the open factual questions. 

For instance, what if the judge, upon hearing the evidence 

in a "round two" indemnification trial or proceeding, perceives 

from the testimony that the co-defendant seeking indemnity was not 

negligent or only slightly negligent, despite the jury's earlier 

finding imposing the greatest share of liability upon that 

defendant? Or, what if the judge perceives that the defendant 

seeking indemnification from the plaintiff's employer bears a much 

higher percentage of fault in causing the accident than the level
A-4439-11T2

43

ascribed by the jurors? This predicament, and the risk of 

inconsistent outcomes, is surely troublesome.

Moreover, a separate trial or proceeding on indemnification

will invariably consume lawyer time and expense, expert time and 

expense, witness time, and other resources already expended in the

earlier negligence trial. Why should a plaintiff, having already 

tried the tort case to verdict, need to become entangled in another 

proceeding, one that only involves the business-driven contractual 

agreements between his or her employer and another private party?

We have considered the possibility that the factual proofs 

might be presented simultaneously before the jurors for purposes 

of the negligence claims and defenses, and for the judge, for

purposes of the indemnity issues. Such a "split fact-finder" 

approach still can pose several disadvantages, however. For one 

thing, the indemnitor or the indemnitee might have demanded a jury 

on the contractual issues. Even if no such jury demand were made, 

the employer/indemnitor has an advocacy interest in presenting 

evidence, cross-examining opposing witnesses, interposing 

evidentiary objections, and making arguments during the course of 

the trial. It might be difficult to explain to jurors what role 

counsel for the employer is actually performing at such a trial

before "dual" decision-makers. 
A-4439-11T2

44

In addition, the judge serving as the fact-finder on the 

indemnity issues may have questions or need clarification about 

testimony as the case unfolds. This will place the judge in the 

difficult position of either letting those queries go unanswered,

or interfering —— perhaps too often —— with counsel's presentation 

of the case to the jurors.

Taking all of these competing concerns into account, we hold

that the sounder practice —— in a context such as the present one 

involving claims even more extensive than those in Kane and an 

unusually lengthy trial —— is to try the negligence and contractual 

indemnification issues simultaneously before the jury. After the

evidence has been presented at such a trial, the court should 

issue carefully-crafted jury instructions, addressing the pivotal

factual issues that the jury must decide. The verdict form will

likewise need to be carefully designed, so as to only have the 

jurors address the question of the employer's potential fault when 

it is absolutely necessary to do so. 

For example, the jury must be instructed that they should 

only consider the employer's negligence if they first determine 

that the conduct of the defendant seeking indemnity is not the 

sole cause of the accident. Jurors will be presumed to follow 

such instructions faithfully. See Belmont Condo. Ass'n, Inc. v. 

Geibel, 432 N.J. Super. 52, 97 (App. Div.), certif. denied, 216 
A-4439-11T2

45

N.J. 366 (2013). In this way, the unified trial process will not 

subvert the policies and objectives underpinning the exclusive 

remedy provision of the WCA. This unitary fact-finding model 

avoids discordant results and may conserve the resources of the 

parties and the court.

The jury should be given appropriate instructions about the 

presence of the employer's counsel in the trial, explaining that 

he or she is participating solely with respect to certain factual

issues that the jury might need to address. The jury should not 

be given an "ultimate outcome" instruction divulging that the 

plaintiff cannot recover any damages from the employer, for we 

suspect such an instruction would likely engender confusion and 

speculation. 

The judge must mold the verdict after it is issued, so that 

the plaintiff's damages are not reduced by the employer's 

percentage share of fault, if any. Instead, the non-employer 

defendants must fully bear any liability owed to the plaintiff. 

Thus, for example, if the jury finds defendant "A" 60% at fault, 

another defendant "B" 20% at fault, and the plaintiff's employer, 

defendant "C," 20% at fault, with no comparative fault accorded 

to plaintiff, the employer's 20% share must be divided among the 

other defendants in a molded judgment that assigns a 75% share to 

defendant "A" and 25% to defendant "B."
A-4439-11T2

46

We stop short, however, of prescribing that such a combined 

jury trial on negligence/contractual indemnification issues also

address discrete factual issues bearing upon insurance coverage,

an option that was suggested to us at oral argument by one of the 

insurance counsel. We also reject the related suggestion that the 

jury should answer special interrogatories on the verdict form 

resolving any additional factual disputes that relate to insurance 

coverage. 

In order to provide meaningful responses to such insurancerelated queries, the fact-finder presumably would want the benefit 

of the advocacy of counsel who are respectively seeking or opposing 

coverage. Such advocacy would call for insurance counsel to 

participate in the trial itself, to present and contest evidence, 

and to make closing arguments to the jury. The jury would

therefore need to understand coverage counsel's role in the case 

and, presumably, the identities of their clients. That

participation would undoubtedly risk speculation by jurors about 

the existence and levels of insurance coverage available to 

defendants. It could easily taint the jury's findings on 

negligence and the amount of any damages awarded. See N.J.R.E.

411 (generally excluding proof of liability insurance coverage in 

cases involving negligence or other wrongful conduct). There is 

also a real danger that the insurance coverage issues could 
A-4439-11T2

47

dominate the jury trial, thereby misdirecting the focus of 

plaintiff's negligence case. 

We therefore limit our prescriptive holding to the 

participation of counsel who represent the parties on the issues 

of contractual indemnification (e.g., as between a general 

contractor or owner and a subcontractor). We do not endorse 

expanding the trial further to involve insurance issues or coverage

counsel. The coverage issues must instead be decided by the court 

or, where a jury demand has been made by the insurers or the 

insureds, by a separate jury.

We recognize that the procedural solution we have endorsed 

is not perfect. Even so, we consider it the most superior of the 

possible alternatives, at least for cases such as the present one, 

involving a significantly greater scope than Kane. That said, the

parties are free to stipulate to a different process, provided 

that the trial judge in his or her discretion finds such a proposed

alternative sensible. 

We suspect that, as a result of settlements with some parties 

and dispositive motion practice, the need for a combined

tort/contractual indemnification trial may prove to be infrequent. 

In any event, we hope the direction that we have provided here 

will be useful in those future situations when they do arise. 

Although it is not our prerogative to do so, the Supreme Court may 
A-4439-11T2

48

also wish to revisit whether the approach in Kane should be 

followed in less complex settings.

B.

Before we apply these principles to the trial that occurred 

here, certain threshold matters must be addressed to provide a

proper context. We first consider Hugo Neu's indemnification 

agreements with, respectively, Femco and S&B, and the trial court's 

interpretation of those agreements.

1.

In Femco's subcontract, it broadly agreed to indemnify Hugo 

Neu for "any and all claims . . . arising, or allegedly arising, 

from and out of (a) the work incident to or resulting from any and 

all operations performed by [Femco] under or pursuant to any of 

the provisions of [its subcontract]." Femco also agreed to 

indemnify Hugo Neu for claims arising out of "(b) any injury to, 

or death of, any person or persons . . . occurring wholly or in 

part in connection with or resulting from the work or by reason 

of any act, omission or negligence of [Femco][.]" Thirdly, Femco 

agreed to indemnify Hugo Neu for claims arising out of "(c) any 

breach or default hereunder by [Femco][.]" The subcontract 

specified that all three of these indemnity triggers apply, 

"whether or not any acts, errors, omission[s] or negligence of any 
A-4439-11T2

49

of the [i]ndemnities [i.e., Hugo Neu] contributed thereto in whole 

or in part[.]"

The trial court correctly held this indemnity language in the 

Femco subcontract to be valid and enforceable. We further concur 

with the court that this contract language was sufficiently plain

and unequivocal to require Femco to indemnify Hugo Neu for damages 

caused by Hugo Neu's own negligence. See Ramos, supra, 103 N.J.

at 191-92 (requiring such provisions to be expressed in unequivocal 

terms); see also Azurak v. Corporate Prop. Investors, 175 N.J.

110, 112-13 (2003) (same). 

We reject Femco's argument that the "whether or not" 

phraseology contained in the contract's indemnity provision 

created a fatal ambiguity that limits its obligation to indemnify 

Hugo Neu for its own negligence. Nor do we agree with Femco that 

the indemnity language here is internally inconsistent. The only 

limitation that applies stems from the statute, N.J.S.A. 2A:40A1, precluding an enforceable duty to indemnify a party that is 

solely negligent, not applicable here.

In addition, we are unpersuaded by Femco's claim that the 

"arising . . . out of" phrase in the contract's indemnity language

precludes Femco's duty to indemnify Hugo Neu for injuries that 

were not shown to be proximately caused by Femco's conduct. 

Applying a common and ordinary sense to that phrase, there only
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50

needs to be proof of "a substantial nexus" between the injury and 

the activities encompassed in the contract. Vitty v. D.C.P. Corp., 

268 N.J. Super. 447, 452-53 (App. Div. 1993); see also Leitao, 

supra, 301 N.J. Super. at 193. 

For example, even if Hugo Neu were found partially negligent 

for an accident resulting to some extent from its failure to 

maintain the safety of a job site where Femco was working, the 

indemnification agreement would apply. That is because of the 

"substantial nexus" between the accident and the job site 

activities encompassed by the contract, unless, as we have said, 

Hugo Neu were found to be 100% responsible for the unsafe 

conditions.

2.

Hugo Neu's subcontract with S&B likewise contains broad 

indemnity language. Stripped to its essence, the indemnification 

clause provides that "[t]o the fullest extent permitted by law," 

S&B shall indemnify Hugo Neu "against claims, damages, losses and 

expenses, including but not limited to attorneys' fees, arising 

out of or resulting from performance of [S&B's work under the 

contract], including, without limitation, any such claim, damage, 

loss or expense attributable to bodily injury, . . . caused by the 

acts or omissions of [S&B], . . . or anyone for whose acts they 
A-4439-11T2

51

may be liable, regardless of whether or not such claim, damage, 

loss or expense is caused in part by [Hugo Neu]."

This language clearly expresses that S&B must indemnify Hugo 

Neu against all claims "arising out of or resulting from 

performance of" S&B's work. The obligation applies, "regardless 

of whether or not such claim, damage, loss or expense is caused 

in part by [Hugo Neu]." The contract expressly identifies one 

subset of such claims for which S&B must indemnify Hugo Neu 

"without limitation," that is, claims for bodily injury caused by 

S&B's negligence, or the negligence of any party for which S&B is 

responsible.

Hence, under the clear and unambiguous terms of the 

indemnification clause, S&B must indemnify Hugo Neu for decedent's 

damages caused by Hugo Neu or S&B. As we have already noted with 

respect to Femco's similar provision, the phrase "arising out of" 

does not require a finding of proximate cause between a plaintiff's 

injury and S&B's work. Rather, it is sufficient that there is

proof of a substantial nexus between the injury and S&B's work.

Vitty, supra, 268 N.J. Super. at 452-53. So interpreted, 

decedent's injury here clearly "arose out of" his employer S&B's 

work under the contract, because it is undisputed that decedent

was injured while performing such work. 
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52

The trial court therefore correctly granted partial summary 

judgment to Hugo Neu in ruling that S&B was obligated to indemnify 

Hugo Neu pursuant to their subcontract, so long as Hugo Neu was 

not found to be solely liable for the accident. We therefore 

reject S&B's cross-appeal of that determination.

3.

The indemnity issues are complicated here, however, by the 

fact that Hugo Neu bargained for duplicative indemnity protection 

from both Femco and S&B. Given that the accident had a substantial 

nexus to the work of Hugo Neu, Femco, and S&B, and did not arise 

wholly out of Hugo Neu's negligence, a question arises as to 

whether Femco or S&B has a primary duty to indemnify Hugo Neu, or 

whether those duties somehow should be equitably allocated,

assuming that Hugo Neu seeks to enforce its rights under both 

indemnity agreements.9 See, e.g., Chamison v. Healthtrust, Inc., 

735 A.2d 912 (Del. Ch. 1999) (in which a corporation's director 

had a right to be indemnified by two separate indemnitors, and in 

which the court divided their indemnity obligations equally), 

aff’d, 748 A.2d 407 (Del. 2000).

 

9 At oral argument on appeal, counsel for S&B asserted that Hugo 

Neu has "waived" its rights to seek indemnity from S&B. We have 

located no evidence of such a waiver in the parties' submissions. 

Indeed, Hugo Neu filed a brief opposing S&B's cross-appeal of the 

trial court's ruling obligating S&B to indemnify Hugo Neu.
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53

Although the parties have not briefed these precise issues 

of overlap, it is conceivable that the relative shares of fault 

of Femco and S&B may bear upon their resolution.

10 No such

comparative findings were made by the jury here. As we have 

already noted, the jury was not permitted to consider assigning a 

percentage share of fault to S&B. We shall consider the 

consequences of that omission, infra, in Part III(C).

C.

Given the circumstances, the trial court justifiably allowed 

S&B's counsel to participate in this jury trial, despite the 

objections posed at the time by plaintiffs' counsel. The issues 

of contractual indemnification relating to Femco, S&B, and Hugo 

Neu required several factual determinations, in which S&B surely 

had an interest. 

These issues included whether Hugo Neu was solely at fault 

for the accident, in which case it would be entitled to no 

indemnity from either Femco or S&B under N.J.S.A. 2A:40A-1. The 

issues also included whether Femco and S&B were each at fault, 

and, if so, to what extent, because those findings could bear upon 

the relative potential indemnity obligations to Hugo Neu of both 

 

10 We suspect that Femco and S&B have not squarely addressed this 

priority issue because they both incorrectly presume that they 

would need to be individually found at least partially at fault 

in order to have any duty to indemnify Hugo Neu.
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54

S&B and Femco. If, for instance, the jury found S&B to be 

faultless, or that S&B's share of fault were less than that of 

Femco, then Femco arguably might have had the paramount obligation 

to indemnify Hugo Neu.

The trial court declined, however, to include S&B on the 

verdict form and thereby allow the jury to "weigh in" on S&B's 

role, if any, in causing decedent's accident. Such potential

fault was not a fanciful possibility, as the evidence could have 

been reasonably viewed (consistent with certain opinions presented 

by some of the liability experts) to support a finding that S&B 

was negligent in allowing decedent, as its employee, to work in 

an area with an unsecured ladder it may have owned. 

Citing our opinion in Kane, supra, the trial judge declined 

to place S&B on the verdict form out of an apparent concern that 

doing so would be inconsistent with the workers' compensation 

laws, and could unfairly interfere with plaintiffs' prosecution 

of their claims against the other defendants. In this regard, the 

judge issued the following explanatory instruction to the jury: 

The plaintiffs may at some point have 

considered whether Simpson & Brown was 

negligent. As to that issue, I have ruled, 

as a matter of law, that the plaintiffs cannot 

sue Simpson & Brown for negligence in this 

case because it is unquestioned that Simpson 

& Brown was Mr. D'Avila's employer and the law 

does not permit that lawsuit to take place. 

So you're not going to be asked to assess the 
A-4439-11T2

55

responsibility of Simpson & Brown in this 

case.

Simpson & Brown did participate in this 

case, as you know, but they participated for 

another issue which I, the Court, have to 

address later. It relates to a contract claim 

between Simpson & Brown and one or another of 

the construction defendants, and that's not 

for you to consider. Please don't speculate 

as to what that issue is.

Only counsel for S&B, Dr. Schrader, and Nurse Garcia opposed the 

omission of S&B from the verdict form.11 

Notably, Femco itself never asserted a position to the trial 

court about the propriety of S&B's participation at trial, nor 

concerning S&B's inclusion or omission from the verdict form. 

Femco presented no argument on these subjects at the October 11, 

2011 pretrial hearing, in the colloquy with the court when the 

issue arose again on October 19, 2011 before opening statements, 

or during the January 3, 2012 charge conference. Femco, which is 

now being represented by different counsel on appeal, does not 

explain why it was silent on this controversial subject before the 

trial judge, although we presume it had some strategic reason for 

being non-committal.

 

11 Hugo Neu initially took the position before the trial began that 

S&B should be on the form. However, after the proofs were 

presented, Hugo Neu withdrew its objection at the charge 

conference, because its counsel had "shifted [his] focus" during 

the trial to the other defendants, given the court's previous 

indication before opening statements that S&B would not be on the 

verdict sheet.
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56

For the reasons we have already noted in Part III(A), supra, 

the trial judge's reluctance to include S&B on the verdict form

stemmed from legitimate concerns and a reliance upon our prior 

opinion in Kane. Moreover, as we have also shown, the state of 

law on this particular subject was muddled. Nevertheless, we 

conclude that the court erred in omitting S&B from the verdict 

form, having allowed S&B otherwise to participate fully in the 

trial and be represented by two separate counsel (one as to the 

job site accident and another as to the medical negligence claims). 

It was simply improper to allow S&B to participate in one manner 

without the other, and counsel have cited no authority endorsing 

such an arrangement.

That said, we now must consider what to do about the verdict 

form omission. Femco is the only party that is pressing the point 

on appeal, hypothesizing that its percentage share of liability 

might have been less had S&B been on the verdict form. S&B 

acknowledges the omission was error, but contends that it was 

harmless. Dr. Schrader, who had opposed S&B's omission, has 

settled with plaintiffs, and Nurse Garcia, who also opposed the 

omission, was not found liable. Plaintiffs, who had previously

resisted S&B's participation, simply urge that we not upset the 

verdict or require them to participate in any second trial. Hugo 
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57

Neu also opposes a retrial, despite having initially favored S&B's 

inclusion on the verdict form when the issue arose before trial.

Notably, no party on appeal is arguing that Kane required 

S&B, as decedent's employer, to be excluded from this trial. In 

fact, the sole appellant that criticizes what occurred in the 

trial court, Femco, advocates just the opposite: that we repudiate 

"[t]he Kane court's admonition that an employer/indemnitor should 

not be permitted to participate in its employe[e]'s personal injury 

trial[.]" Citing Rule 4:30A (the single controversy rule), Femco 

further argues that Kane's approach "unnecessarily suppresses" the 

important "public policy in favor of disposing of all claims 

against all parties in one proceeding." Instead, Femco advocates 

that we adopt a more efficient approach that allows the employer 

to participate, but with appropriate "jury instructions that 

explain the parties' specific claims and how the jury may apportion 

fault." Hence, Femco urges that the unitary trial approach, 

sanctioned in White and mentioned in Bradford, be applied to cases 

such as the present one.

Given that Femco did not advocate —— either before or during 

the trial —— for S&B's inclusion on the verdict form, we do not 

perceive a manifest injustice to Femco that needs correction. We 

do not countenance a retrial of the entire case, which consumed 

almost forty days before a jury.
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The "plain error" standard of review may be inapplicable here

because the error of S&B's omission was "brought to the attention" 

of the trial court, albeit by other parties, see Rule 2:10-2. Even 

so, we are not convinced that Femco was sufficiently prejudiced 

by that error to compel a retrial. 

With respect to Femco's now-resolved direct liability to 

plaintiffs, we discern no prejudice from S&B's omission from the 

verdict form. Femco's counsel strenuously advanced an "empty 

chair" theme against S&B at trial. That strategy apparently failed 

to persuade the jurors that Femco was blameless in the events 

leading up to the accident.

We are unpersuaded that the jury would have exonerated Femco, 

or would have been likely to find Hugo Neu more liable than the 

25% allotted by the jury, had S&B been listed on the verdict form. 

There is no equitable or legally compelling reason here to require 

the entire case to be retried before a different jury, despite the 

improvident omission of S&B from the verdict form now belatedly 

being complained of by Femco. In Addition, Femco's recent 

settlement with plaintiffs, in which plaintiffs' judgment against 

Hugo Neu has been assigned to Femco, only strengthens the reasons 

for not burdening plaintiffs with additional proceedings.

A lesser remedy may, however, be appropriate, depending upon 

what Hugo Neu now intends to do with respect to its overlapping 
A-4439-11T2

59

rights of indemnification against Femco and S&B. If Hugo Neu 

still intends to pursue indemnification from both subcontractors, 

pursuant to the terms of their contracts, a fact-based 

apportionment of fault between Femco and S&B might well be 

necessary to resolve their respective duties to indemnify.12

The jury trial unfortunately provided no guidance to compare 

Femco's and S&B's roles, respectively, in connection with the job 

site accident. That comparison is not amenable to being resolved 

by our appellate review of transcripts from the jury trial, or by 

remanding the matter to the trial judge for a review of his trial 

notes. Instead, the comparative relative percentages of fault of 

Femco and S&B —— assuming, arguendo, that they are needed to sort 

out the overlapping indemnity obligations of Femco and S&B ——

cannot be fairly decided without testimony and credibility 

assessments.

 

12 We do not resolve here whether the exclusive remedy mandate of 

N.J.S.A. 34:15-8, or related case law disallowing common-law 

contribution claims against a negligent employer, see Ramos, 

supra, 103 N.J. at 189, could affect the priority of duplicative 

duties to indemnify owed to Hugo Neu by both Femco and S&B. We 

also do not resolve whether those authorities could affect whether 

Femco could obtain reimbursement from S&B of any sums it might pay 

to indemnify Hugo Neu. These issues, conditional as they are in 

nature, have not been briefed. If necessary, the trial court may 

consider them on remand, in light of any arguments raised by 

counsel.
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Should Hugo Neu, therefore, maintain its right to be 

indemnified by both Femco and S&B, then another proceeding may be 

required on remand to sort out the respective degrees of fault of 

Femco and S&B, as between one another. The percentage shares of 

Hugo Neu, Femco, and Dr. Schrader owed to plaintiffs shall remain 

undisturbed. The sole focus of such remand proceedings on the 

issues of contractual indemnity, if they are needed, shall be 

confined to a comparison of the actions and inactions of Femco 

with the actions and inactions of S&B.

Because Femco, S&B, and Hugo Neu each requested a jury trial 

in their pleadings, the remand proceedings shall be tried, if 

necessary, before a new jury, unless, of course, the parties 

consent to a bench trial. To reduce the costs involved and the 

burdens imposed on the other parties who are no longer involved 

in the case, counsel are encouraged to stipulate as much as 

possible to undisputed facts, and to consider agreeing to have 

much of the transcribed testimony from the first trial read into 

the record. 

We emphasize that the scope of this second proceeding, if one 

is required, should be narrow. The damages awarded to plaintiffs

shall remain unaltered, for the reasons noted, infra, in Part 

IV(A).
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IV.

[At the direction of the court, the published 

version of this opinion omits Part IV, which 

addresses additional claims of error relating 

to the jury trial raised by S&B and Femco.]

V.

[At the direction of the court, the published 

version of this opinion omits Part V, which 

addresses numerous issues raised on appeal by 

two of the insurance carriers, specifically 

C&F and American Home.]

VI.

We have considered all of the other points raised on appeal 

by the various parties and conclude that they lack sufficient 

merit to be discussed in this opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, vacated in part, and remanded in part. We 

do not retain jurisdiction.