NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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'AVIL A, 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
- Appe llant/ 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 DIVISIONA - 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 Plaintiff

Respondent/Cross

- Appellant,

v. AMERICAN HOME ASSURANCE COMPANY,
Fourth
- Party Defendant
Respondent,
and WILLIS NORTH AMERICA, INC. (as successor - in

- interest to Fleet Insurance Services, Inc.),
Fourth
- Party Defendant
Respondent.

________

___________________________ CONTINENTAL CASUALTY COMPANY, Plaintiff

- Respondent,

v. AMERICAN HOME ASSURANCE COMPANY, Defendant
- Respondent,
andA - 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
- Resp o ndent,
and SIMPSON & BROWN, INC.,
Intervenor - Defendant/ Respondent.

____________________________________

Argued November 17, 2014
- Decided Before Judges Sabatino, Simonelli, and Guadagno. A ugust 10 , 2015A - 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 & Carp enter, 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 A

4439
- 11 (Blum e, 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 A rnette 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 (L aw 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, o f 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 b rief).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 A

4713
- 11. Nancy Lem argued the cause for respondent Continental Casualty Co mpany 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, att orneys; Mr. Spero, of counsel and on the brief). Margaret T. Korgul argued the cause for respondent Willis North America, Inc. in A

4713
- 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
- appe als involves over a dozen parties . The matter concerns both a wrongful
death case against multiple defendants tried over four months before a ju ry , and a host of related insura nce coverage issues decided by the trial court.

T he litigation stems from a work place accident on a construction site , in which a subco ntractor's employee was struckA - 4439
- 11T2 6 o n the head by an unsecured metal ladder and became paralyzed. Following that traumatic injury , the worker recei ved negligent medical treatment , including the depriv ation of sufficient oxygen, causing him brain damage. He died three years later . The worker's estate f iled 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 con tractual indemnificat ion against both t he worker's own employer and against

a n installation subcontractor , alleging that each of them bore responsibility for the hazard posed by the unsecured l adder. Additionally, several insurers and an insurance broker whose policies were implicated by the accident sought coverage rulings.

Be cause the exclusive remedy provision within the worker's compensation statute, N.J.S.A. 34:15
- 8, do es not preclude a

n egligent employer's liability for contractual indemnification, the tria l 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 installationA - 4439
- 11T2 7 subcontractor, and one of the defendant medical providers . The trial co urt 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 pa rticipate in a jury trial of an underlying tort action , in a situation where the factual determinations could trigger the employer's duty t o indemnify a defendan t 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 f ault, if any, on the ver dict 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 d epend upon whether the job site owner is continuing to press its claims of contractual indemnification against both the decedent's employer a nd the installation subcontractor . If so, additional
fact
- finding might be requi red to sort out the priority or di vision 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 j ury 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 aff irm the trial court's rulings
and the final judgment predicate d on the jury's verdict, thus deny ing relief on the plethora of other issues raised on appeal in the parties' twenty

- three briefs . 2

I. We derive the following pe rt inent 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 man y of the assorted issues of liability, indemnification, and insurance coverage raised on appeal. The Job Site and the Parties' Relationship s The decedent, Jack D'Avila, was a laborer employed by third

party 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 shredde r" at the facility of defendant, Hugo Neu Corporation. 3 Hugo Neu is a metal recycling company. At the Jersey City location, Hugo Neu processe d scrap metal and loaded it onto shi ps. 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 i n 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 o f 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 f oundations and structural w ork . Hugo N eu separately arranged for another subcontractor, defendant Femco Machine Company ("Femco"), to ass emble 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 Schni tzer 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 &

Asso ciates, 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 describe s the ladder safety requirements and practices among the construction defen dants .]
The Decedent's Accident The accident occurred on May 18, 2005. The trial testimony
centered around determining who had pla ced ladders against the
mot o r base in the days leadin g up to the accident, a time frame
when Femco was preparing fo r installation of the shredder .

[At the direction of the court, the published version of this opinion omits Section 1 of Part I, which describe s 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 fel l and hit decedent on the head . Many of the witnesses agreed that the ladder most likely belonged to S&B, because Femco di d 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 t he ladder on theA - 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 th at the accident had occurred and the nature of the accident. Nearly one year l ater, an investigator for S&B prepared a somewhat more detailed report indi cating 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 w as 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 un tied 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 describe s the liability experts' competing opinions at trial. ]
Decedent's Injuries and Medical Treatment After he was struck by the ladder, decedent fell down, and vari ous 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 tr eatment . In the emergency room, he was able to speak and to move his hands, feet, arms, and legs , albeit with d ifficulty , and with some loss of feeling . Decedent had suffered spinal fractures at disc levels C2 and
C7. At level C3
- C4, he had suffered bru i sing and swelling of the spinal cord and a bulging disc . These injuries were causing neurologic al damage, including partial paralysis, with the right side more affected tha n t he left. By the time deceden t 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 t o 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 s h ow no reported complications with the surgery.A - 4439
- 11T2 13 Po st - surgery, decedent was sent to the surgical Intensive Care Unit , where he was under the supervision of defendant Patricia

A. Schrader, M.D., a tr auma 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 . Defenda nt Conchita Garcia , R.N., was his nurse from 7:00 p.m. on May 19 to 7:0 0 a.m. on May
20. Defendant Amy R. Cuts hall , R.N., was his nurse from 7:00 a .m. to 7:00 p.m. on May 20 . At the star t of Nurse Pangilinan's shift, the doctor's orders

w e re 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, d ecedent was not
able to fl ex 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 q uadriplegia, albeit incomplete. She also noted that decedentA - 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 ab out 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 unconsciou s person's airway. She explained that there were risks to intubation, including possibly worsening the spinal cord injur y with the movements necessary to achieve i ntubation, as well as infection or pneumonia. Nevertheless, to minimize the risk of aspira tion , 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 possi ble 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 checkA - 4439
- 11T2 15 on him. Conce rned that he may be choking, the nurse suctioned his airwa y, 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 p eople 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
anesthes ia 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

source s 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 de saturation, re sulting in "anoxic brain injury ." Decedent's Remaining Life and Demise Decedent spent the rest of his life in various healthc are 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 ven tilator. In their testimony, d ecedent's wi fe and children described their losses due to his passing . They presen ted expert testimony on damages , which was rebutted by experts presented by S&B.
The m edical experts disagreed as to whether decedent's respiratory distress occurred due to damage to his phrenic nerves,

c aused 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 s wallowing 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 increasin g 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 intuba ted him earlier, during rounds. Fin ally, 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
bra in damage, or whether that damage occurred during a later event,A - 4439
- 11T2 17 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

- guar dian 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 t he exclusive remedy provision of the Workers' Compensation Act ( "the WCA ") , N.J.S.A. 34:15
- 8. S&B alsoA - 4439
- 11T2 18 asserted a counterclaim and cross

- claim s for contribution and indemnification. S&B filed a fourth

- party complaint against its insurer, American Home As surance 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 cov erage 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 C overage Actions

In a re lated action, Hugo Neu's insurer, Continental Casu al ty 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

w ere resp onsible for providing co verage 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 fil ed an answer with cross

claims.A - 4439
- 11T2 19 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 , r uling 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 grantin g 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 court 4 issued an oral opinion on June 9,
201 0 , 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 ruli ngs granting summary judgment to Continental again st American Home and C&F, requiring them to " provide primary and non

- contributing insurance coverage (both defense and indemnification) up to the full li m i ts 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
purs uant 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 indemnificatio n provision between Hugo [Neu] and [ S& B ] shall not be triggered until the insurance

cov erage 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 a nd 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, t he 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 con sider S& B 's negligence . The Tr ial and The Verdict Before the trial began, p laintiffs' counsel rene wed his objection to the court allowing the jury to consider the negligenceA - 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 disallo w S&B's participation at trial. At the close of evidence, the parties made a variety of motions, including motions for direct ed 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 it s motion for a directed verdict , which the cour t 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 har m 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 o n 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. T hus, it as sessed Dr. Schrader as the cau se 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 aw arded $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.

D ecedent's w ife (Rocha) was awarded: $50,000 for the loss of consortium; $54,397 in past loss es ; and $334,150 in future losses.

D ecedent'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 negligenc e was an interveni ng, superseding cause of decedent's ultimate harm.A - 4439
- 11T2 23 Post - Trial Motions After several parties filed post

- trial motions, the trial judge issued a written letter opinion dated April 12, 2012. In that decisio n, the judge reaffirmed the pre t rial rulings that obligated American Home and C&F to provide H ugo Neu with primary,

non - contri buting insurance, and required those ins urers to pay the judgment again st Hugo Neu. The judge also denied Femco's motions to dismiss Hugo Neu's claim against it for contractual indemnification, a nd further denied Femco's m otion for judgment notwithstanding the verdict or, alternatively, a new trial. The judge further deni ed Dr. Schrader's motion t o mold the verdict so that only the so - called " construction defend ant s " the jury had found to be at fault (i.e., Hugo N eu and Femco) were liable. In addition, the judge required Femco to indemnify Hugo Neu pursuant to th eir contract; and suspended pre judgment inter e st
on two - thirds of the award for medical expenses . The Final Judgment, As Amended

T he 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 a ward , with pre judgment interest , amounted to $8,534,726.27.A - 4439
- 11T2 24 Meanwhile, the court granted Continental 's motion for payment of in terim defense fees and expenses , which was op posed 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 D r. Schrader, Liberty Surgical, and JCMC.

T he trial court thereafter entered a second amended judgment, requiring American Home and C&F to provide primary and non

contributory coverage for the judgment against Hugo Neu, and requiring C&F to provide primary and non

- contributory coverage for the ju dgment against Femco. The Myriad Appeals The trial court stayed the judgment, conditioned upon t he posting of a supersede a s bond. Appeals were subsequently filed by, respectively : plaintiffs, Femco, S&B, C&F, and American Home. Plaintiffs subsequently settled with Dr. Schrader and her employer s, Liberty Sur gical and JCMC.

III. Femco, which bears the largest share of liability under the jury's verdict, raises on appeal several interrelated issues of negligence an d contractual indemnification.A - 4439
- 11T2 25 Specifical ly, 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 ow n negligence . Femco further argues that the jury's apportionment of fault against it was agai nst the weight of the evidence. The remaining issues raised on appeal by Femco were resolved through its recent settlement with plaintiffs. Meanwhile, the issue s 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 deced e nt'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 th e issues of negligence liability and contractual indemnification that also have been raised, we include them within our analysis in this secti on of the opinion
as well.A - 4439
- 11T2 26 A. The W CA , 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 perform ance of work duties." Basil v. Wolf , 193 N.J. 3 8, 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 (19 98). 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 establishe s that the WC A does not, however, preclude an injured employee from pursuing claims against third

- partyA - 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
sub ject 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 t he employer." Ramos , supra , 103 N.J. at 184 ; a ccord Stephenson v.

R.A . Jones & Co. , 103 N.J. 194, 199 (1986 ); McDaniel , supra , 419 N.J. Super. at 492
- 9 3. Hence, in the context of a plaintiff

- employ ee'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
prese nting th[e] matter to the jury [ . ] " Jarrett v. Duncan TheckerA - 4439
- 11T2 28 Assoc s . , 175 N.J. Super. 109, 115 (Law Div. 1980) ; a ccord 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 b y the Legislature in the WCA . Nothing in the WCA precludes an employer from assuming a contractual duty to inde mnify 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., Honeywe ll,

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 th eir contract, for any of plaintiff s ' 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 neglige nce." 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, o r 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 N ew Jersey have provided mixed signals
about how the court should treat an employer named as a third

party 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 concerni ng 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. Sup er. 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 proper ty 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.

H ence, 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 judg ment 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 liab ility results from Ledger's affirmative n egligent 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 a mount 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 righ t to recover from Colin can be avoided by i n structions 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 plai ntiff 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
ag reed 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 workA - 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 w ould be submitted to the jury only if the jury first returned a verdict finding that neither the Hartz defendants n or [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 - Ho well 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 Eas tern. 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 involv ed " industry

- wide or regulatory safety standards , " we concluded that Eastern "would n ot 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 Ha rtz, 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 do ing so, the CourtA - 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 Bradfor d 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
anoth er injured on the job when both inhaled poisonous gas in the

T uckerton 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. Ibi d. The jury returned a no

- cause verdict, which we affirmed on appeal . Id. at 563
- 64. Howev er, we reversed the court's pre trial ruling that Agate was not required to indemnify Kupper and the

TMUA. Id. at 564, 582
- 86. Construing the indemnification prov ision with in the construction contract in Bradford , we held that the contract "clearly did not require Agate to indemn ify only for its own negligence , " but rather imposed a broader obligation. Id. at 584. On the other hand, we recognized that the agreeme nt 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. " I bi d. We als o were persuaded that the plaint iffs' claims in Bradford "arose or resulted from" the work,

as was required under the contract to trigger such a duty to indemnify. Id. at 58 5 . Turning to the troubl esome question of the appropriate role
of the plaint iff s ' employer, Agate, in the fact

- finding process , we suggested in Bradford that Agate m ight be permit ted to participate in the tr ial. 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 r equiring 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 h ave 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 neithe r 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' work

related injuries, we are unprepared to permit Agate to re - litigate the i ssue of n egligence or whether either TMUA or Kupper can be said to be solely negligent . [ Id. at 58 6 (e mphasis added).] Thus, under the particular circumstances presented in Bradford , we only remand ed the case for "consideration of all the issues regardin g 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, arguab ly 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

c omment in 1995 about that subject precede d 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.

Dam on G. Douglas, Co mpany , 301 N.J. Super. 187 (App. Di v. ), certif. denied , 151 N.J. 466 (1997), we noted there that the Law Division
had severed at trial a defendant general contractor's third

- partyA - 4439
- 11T2 37 complaint for contractual indemnification against the plai n t iff's employer. Id. at 1 9 0. After the jury found the contractor 51% negligent and the employee 49% negligent, the trial court addres s ed the ind emni fication questions. The court ruled that the plaintiff's employer was obligated to fully indemnify the defendant, despite the plaintiff's comparative fau lt. 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 i ndemnitee's "sole negligence." Id. at 19 0, 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 i ssues 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 a gainst 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 massi ve

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 fi sh in a very large pond. The sheer number of defendants and claims in this case compel s 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 s hould take precedence and warrant an exception to Kane . 2.
A few other state courts and treatise writers have grappled with this per plexing 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) (allow ing such indemnification claims to be tried before the jury along with the plaintiff employee's negligence claims against the defendant indemnitee, affirming the trialA - 4439
- 11T2 39 On the other hand, some jurisdictions have ruled that, u nder an express contract of indemnity running from a plaintiff's employer to a third party, " the third party cannot insist that t he employer and the employer's insurer be joined in the pla i ntiff's action for purposes of enforcement of the right of indemnit y." 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 in cident itself, every precaution should be ta ken to see

court's denial of the employer's severance motion seeking a separate trial on the indemn ification 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); Se verino 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 Co mpany , 321 N.Y. S. 2d 81 ( N.Y. 1971), the parti es 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 8 4 .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 pr ocess, 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
pro blem 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 situation s in which an insurer for the employ er/indemnito r w ould not provide coverage for th a t 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 contri buted 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 obvio us. 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

o f the WCA . We also are mindful of the related desire not to entangle an injured worker's employer indiscriminate ly 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. , Oliv i eri v. Y.M.F. Carpet, Inc. , 186 N.J. 511, 522 (2006);
State v. Gon zalez , 75 N.J. 181, 190, 193 (1977). Those offsetting considerations weigh in favor of attempting to resolve indemnity issues, where possible, within t he same trial or before the same
fact
- finder. We suspect that, in many instances, such as the present c ase, a general contractor or project o wner routinely will insist on its
subcont ractors entering into broad indemnification agreements that strive to insulate the owner or general contractor from l iability
when one of the subcontra c t or s' employees is injure d on the job site. Depending on the contractual language utilized, the proper application of those indemn ity agreements may require factual findings as to : whether the employee's injury "arose out of" theA - 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 fa ctual issues can be very closely intertwined with the liability proofs and the findings that a jury m ust 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 tho se factual issues relative to contractual indemnification . It could be exceedingly difficult for a trial judge ( who would not, of course, be pr ivy 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 ope n 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, despi te 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 acc ident than the levelA - 4439
- 11T2 43 ascribed by the jurors? This predicament, and the risk of incon sistent outcomes, is surely troublesome . Moreover, a separate trial o r proceeding on indemnification will invariably consume lawyer time and expense , expert time and
expe nse, witness time, and other resources already expended in the earlier negligence trial. Why should a plaintiff, having already trie d the tort case to verdict, need to be come entangled in another proceeding , one that only involves the business

- driven cont ractual 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
th ing, the indemnito r or the indemnitee might have demanded a jury on the contractual issue s . Even if no such jury demand w ere made, the employer/indemnito r has an advocacy interest in pr esenting evidence, cross

- examining opposing witnesses, interposing evidentiary objections, and making arguments during th e 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 questi ons 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 co ncerns into account, we ho ld

t hat the sounder practice

—— in a context such as the pre sent 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. Afte r 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 de sign ed, so as to only have the jurors address the question of the employer's potential fault when it is absolutely necessary to do s o. For example, the jury must be instructed that they should only consider the employer's negligence if they first determine
th at the conduct o f the defendant seeking indemnity is not the sole cause of the accident. J urors 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 , 216A - 4439
- 11T2 45 N.J. 366 (2013). I n 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 cour t. 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 respe ct 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 a ny 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 issu ed , 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, fo r example, if the jury finds d efen dant "A" 60% at fault,
another d efendant "B" 20% at fault, and the plaintiff's employer , d efendant "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
d efendant " A " and 25% to d efendant " 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 coverag e, 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 insur ance
coverage. In order to provide meaningful responses to suc h insurance

related queries, the fact
- finder presumably would want the benefit
of the advocacy of counsel who are respectively seeking or opposing coverage. Such advocacy would ca ll for insurance counsel to
par tic i pate i n t he trial itself, to present and contest evidence, and to make closing arguments to the jury. The jury wo uld
therefore need to understand coverage counsel's role in the case and, presumably, the identities of their c lie nts. That participation would undoubtedly risk speculation by jurors about the existence and levels of insurance c overage 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 li ability insurance coverage in

case s involving negligence or other wrongful conduct). There is also a real danger that the insurance coverage issues couldA - 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 separat e 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 . T ha t said, t he parties are free to stipulate to a different process, provided that the trial judge in his or he r discretion finds such a proposed alternative sensible. We suspect that, as a result of settlement s with some parties and dispositive motion prac tice, the need for a combined tort/contra ctual indemnification trial may prove to be infreque nt. 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 prerogati ve to do so, the Supreme Court mayA - 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 mat t ers 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 cl aims . . . 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 a ll three of these indemnity triggers apply, "whether or not any acts, errors, omission[s] or negligence of anyA - 4439
- 11T2 49 of the [ i ] ndemnities [i.e ., Hugo Neu] contributed th ereto 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. Corp orate 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 a gree with Femco that the indemnity language here is internally inconsistent. The only limitation that applies stems from the statute, N.J.S.A. 2 A:40A
1, 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 onlyA - 4439
- 11T2 50 need s 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
f or 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 condition s . 2. Hugo Neu's subcontract with S&B li kewise contains broad indemnity language. Stri pped to its essence, the indemni fication clause provides that "[t]o the fullest ex tent permitted by law,"
S&B sha ll indemnify Hugo Neu "against claims, damages, losses and expenses, including but not limite d t o attorneys' fees, arising out of or resulting from performance of [S&B's work unde r the contract], including, with out 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 theyA - 4439
- 11T2 51 may be liable, regardless of whethe r or not such claim, damage, loss or expen se is cau sed in part by [Hugo Neu]." This language clearly expresses that S&B must indemnify Hugo Neu against all cla ims "arising out of or resulti n g from performance of" S&B's work. The obligation applies, "rega rdless
of whether or not such cla im, 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 N eu "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, u nder 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 an d S&B's work. Rather, it is suffic ient 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.A - 4439
- 11T2 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 foun d 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 dutie s 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 inde m n ified by two separate indemnit ors , 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

- appe al of the trial court's ruling obligating S&B to indemnify Hugo Neu.A - 4439
- 11T2 53 Alt hough the parties have not briefed these precise issues of overlap, it is conceivable that the relative shares of f ault of Femco and S&B may bear upo n 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
perce ntage share of fault to S&B . We shall consider the
conseque nces 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 co ntractual 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 indem nity 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.A - 4439
- 11T2 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 includ e 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 opini ons 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 , t he 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
law s , and could unfairly interfere with plaintiffs' prosecution of their claims against the other defendants. In this regard, t h e judge issued the following explanatory instruction to the jury:

The plaintiffs may at some point have considered whether Simpson & B rown was negligent. As to that issue, I have ruled, as a matte r of law, that the plaintiffs cannot sue Simpson & Brown f or negligence in this case because it i s unquestioned that Simpson & Brown was Mr. D'Avila's employer and the law does not permit that lawsuit to take pla ce. So you're not going to be asked to assess theA - 4439
- 11T2 55 responsibility of Simpson & Brown in this case. Si mpson & Brown did participate in this case, as you know, but the y participated for another issue which I, the C ourt, 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.
O nly counsel for S&B, Dr. Schrader, and Nurse Garcia opposed the omission of S&B from the verdict form. 11

No tably, Femco itself never asserted a positi on 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 the se subject s 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.A - 4439
- 11T2 56 For the reasons we have already noted in Part III (A), supra , the trial judge's reluctance to include S&B on the v erdict form stemmed from legitimate concerns and a reliance upon our prior opinion in Kane . Moreover, as we h ave also shown, the state of law on this particular subject w as 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 i s press ing the point on appeal, hypothesizing that its percentage share of liability

m ight 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 omiss ion, has
settled with plaintiffs , and Nurs e 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 a ny second trial. HugoA - 4439
- 11T2 57 Neu also opposes a retrial, des pite 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 th is trial. In fact, the sole appellant that cr iticizes 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 permitte d 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

—— e i ther 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 correc tion . We do not countenance a retrial of the entire case, which consumed
al most forty days before a jury.A - 4439
- 11T2 58 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 plaintiff s, we discern no prejudice from S&B's omi ssion from the verdict form. Femco's counsel strenuously advanced an "empty chair" theme against S &B at trial. T hat strategy apparently failed to persuade the jurors that Femco was blameless in the events leading up to the accident. We are unpersuaded th at the jury would have exonerated Femco,

or would have been likely to find Hugo Neu more liable tha n the
2 5% 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 overlappingA - 4439
- 11T2 59 rights of indemnification against Femco and S&B. If Hugo Neu still intends to pursue indemnification from both subcontractors, pursuant to th e terms of their contracts, a fact
- based apportionment of fault between F emco and S&B might well be necessary to resolve the ir respective duties to indemnify. 12 The jury trial unfortunately provided no guidance to compare

Femco's and S&B's role s, respectively, in connec tion 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 b e 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 re solve 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 consi der them on remand, in light of any arguments raised by counsel.A - 4439
- 11T2 60 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 plaintiff s shall remain
und isturbed. The sole focus of such remand proceedings on the issues of contrac tual 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.
Becau se Femco, S&B, and Hugo Neu each requested a jury trial in their pleadings , the remand proceedings shal l 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 t o consider agreeing to have
much of the transcribed testimony from the first trial read i n to the record. We emphasize that the scope of this second proceeding , if one is required, should be narrow. The damages awarded to pla i ntiff s shall remain unaltered, for the reasons noted, infra , in Part

IV (A) .A - 4439
- 11T2 61 IV. [At the direction of the court, the published version of this opinion omits Part I V , 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 Ho me. ]

VI. We have considered all of the other points raised on appeal by the va rious 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 rem anded in part. We
d o not retai n jurisdiction.