SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0591-15T2

KELVIN HOLMES,

Plaintiff-Appellant,

v.

JOSE ZAYAS, and JERSEY CITY

INCINERATOR AUTHORITY,

Defendants,

and

WASTE MANAGEMENT OF NEW JERSEY,

INC. d/b/s or a/k/a NE NJ HAULING,

NORRISTOWN ON SITE d/b/a CENTREX

STAFFING, INC., 

Defendants-Respondents.

_______________________________________

Argued March 16, 2017 – Decided

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Docket No. L0597-13. 

Daniel W. Sexton argued the cause for 

appellant.

Paul Lanza argued the cause for respondents 

(Callahan & Fusco, LLC, attorneys; Mitchell 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

October 13, 2017
2 A-0591-15T2

R. Ayes and Karen L. Williams, on the 

brief).

PER CURIAM

Plaintiff Kelvin Holmes was an employee of Norristown On Site 

d/b/a Centrix Staffing, Inc. (Centrix), a company that provided 

workers to defendant Waste Management of New Jersey (WM) pursuant 

to a contract. After he was struck by a car and injured, plaintiff 

collected workers compensation benefits from Centrix, settled with 

third parties and filed the instant action against Waste 

Management. He appeals from an order granting summary judgment 

to WM, contending that the dismissal of his negligence claim was

error. We affirm, substantially for the reasons set forth by 

Judge Joseph A. Turula in his oral decision. 

I.

In our review of the order granting summary judgment, we view 

the evidence in the light most favorable to plaintiff to determine 

whether Waste Management was entitled to judgment as a matter of 

law, Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing 

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)), 

and review questions of law de novo. Davis v. Devereux Found., 

209 N.J. 269, 286 (2012).

In the early morning hours of November 22, 2011, plaintiff 

had finished his shift as a sanitation worker when he was dropped 
3 A-0591-15T2

off by a Waste Management truck driver on JFK Boulevard in Jersey 

City, where he was to be met by a Waste Management supervisor who 

plaintiff expected to drive him to help on another route.1 He 

attempted to cross Kennedy Boulevard to meet the supervisor but 

was struck by a vehicle driven by Jose Zayas. 

At that time, plaintiff had returned to working for WM two 

weeks earlier, having been placed there by a temporary agency, 

Centrix. His paychecks came from Centrix. He previously worked 

for WM from 2006 to 2007 and from 2002 through 2004. Each time, 

he was placed with WM by a temporary agency, Centrix for 2006 to 

2007 and Active Staffing for 2002 through 2004. Plaintiff 

testified that, in 2006, Centrix took over the contract with WM 

from Active Staffing and that, when he returned to work, Centrix 

"was the agency you had to go through to get employment."

Plaintiff's sole reason for applying to Centrix was so he 

could work for WM and he was "only employed with Centrix so that 

[he] could work for [WM]." This had not been the case with Active 

Staffing, where he did other jobs as well as working for WM.

 

1 Plaintiff testified that when he was dropped off, it was either 

to take him home or to help out with another route. He believed 

that on this evening, he would have been taken to another route 

because it was too early to go home. 
4 A-0591-15T2

Plaintiff did not have to fill out additional paperwork for 

WM. He watched a safety video that was specific to working for 

WM and never returned to the Centrix office.

On November 7, 2011, plaintiff signed a form, labeled "Focus 

on Integrity, Code of Conduct, Safety Training, Responsibility 

Statement, Contractor Copy," which stated:

I acknowledge that I am not a Waste Management 

employee but have been made aware of [WM's] 

Code of Conduct, understand it and accept my 

obligation and responsibility for maintaining 

[WM's] reputation for integrity. I 

acknowledge that I understand the safety 

training I have received and that it is my 

responsibility to wear all safety equipment 

as required and to comply with all applicable 

safety training, rules and regulations.

He also signed an "Employee Safety Training Documentation"

that acknowledged he had seen the "Waste Management Safety Video."

Each day, he began work by walking to a destination where a 

supervisor drove him in a WM van to the garage where the garbage 

trucks were located. Throughout his employment, he was told where 

the van would pick him up and what he would be doing. During the 

two weeks he was employed prior to the accident, Centrix's "input" 

regarding his employment was to tell him he was assigned to WM. 

He was advised on a daily basis by a WM supervisor whether he was 

scheduled for work the following day. 
5 A-0591-15T2

The safety equipment plaintiff received, gloves and a lime 

green vest with reflectors, were provided by Centrix but, some of 

the vests were labeled with WM's name on the back. The trucks he 

worked on were WM trucks.

In 2011, Randy Newman was operations manager for Centrix. He 

testified that Centrix trained employees who would work for WM 

using materials provided by WM. Centrix handled disciplinary 

issues and was responsible for terminating employees when 

necessary. 

Thomas Brindley, senior district manager at WM, testified 

that the route manager for WM selected who would work for WM on 

any given day. Although the route manager did not have authority 

to terminate the employment of any Centrix employee, he could 

advise Centrix if he did not want a particular worker to return 

to work for WM. He stated further that WM had safety requirements 

for certain items the workers should wear.

The Master Agreement between WM and Centrix (referred to 

herein as Contractor) provided, in part:

3. Contractor Responsibilities: Contractor 

is in the business of supplying trained and 

qualified temporary labor ("Personnel") or 

("Worker") to perform work as requested by 

Waste Management. Contractor is solely 

responsible for performing all hiring, firing,

discipline, training and other 

responsibilities necessary to discharge its 

legal obligations as the employer of the 
6 A-0591-15T2

Personnel supplied to Waste Management. 

Contractor and Personnel shall be independent 

contractors in respect of Waste Management, 

and shall not be employees of Waste 

Management. Contractor is solely responsible 

for all payments whatsoever required to be 

made to or in respect of its Personnel, 

including, without limitation, all wages, 

salaries and benefits (including health 

insurance and/or medical payments), all 

federal, state and local payroll taxes, and 

all Workers' Compensation insurance coverage 

and payments.

4. Invoicing, Payment, & Rates: Contractor 

shall be reimbursed by Waste Management's 

third party administrator, . . . .

5. Training: Contractor is obligated to 

ensure that Personnel supplied to Waste 

Management are fully qualified and trained for 

the jobs they are being supplied to perform 

and that they have been given safety training 

that meets or exceeds the training Waste 

Management provides to its employees for the 

same or similar jobs. 

9. Insurance: Contractor agrees to maintain 

the following minimum insurance with solvent 

and qualified insurers acceptable to Waste 

Management:

a. Workers Compensation and Employers 

Liability Insurance:

. . . .

d. Waste Management, including parent, 

affiliated and related companies shall be 

named as an Additional Insured on all policies 

except Workers' Compensation.
7 A-0591-15T2

II.

The Workers' Compensation Act (WCA) N.J.S.A. 34:15-1 to -128, 

provides an employee with an exclusive remedy against the employer 

for work-related injuries. Gore v. Hepworth, 316 N.J. Super. 234, 

240 (App. Div. 1998), certif. denied, 158 N.J. 70 (1999); N.J.S.A.

34:15-1,-7, -8. An employee receives workers' compensation 

benefits, which are awarded without regard to fault, and surrenders 

common law tort remedies against his or her employer and coemployees, except for intentional wrongs.2 N.J.S.A. 34:15-8; 

Basil v. Wolf, 193 N.J. 38, 53-54 (2007) (citing Millison v. E.I. 

du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)).

An employee may have two employers under the special-employee 

doctrine. Volb v. G.E. Capital Corp., 139 N.J. 110, 116 (1995)

(citing Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-

30 (App. Div. 1967)). When the doctrine applies, both employers 

are subject to liability under the Workers Compensation Act and 

the "recovery against one bars the employee from maintaining a 

tort action against the other for the same injury." Antheunisse 

v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), 

certif. denied, 115 N.J. 59 (1989). 

 

2 Plaintiff does not appeal from the dismissal of his intentional 

wrong claim.
8 A-0591-15T2

Therefore, whether the tort action against WM is barred is 

"dependent upon a determination that" WM is a special employer of 

plaintiff. Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J. 

Super. 349, 360 (App. Div. 2014) (quoting Blessing, supra, 94 N.J. 

Super. at 430). Because there is no question that an employment 

relationship existed between plaintiff and WM, the question 

whether plaintiff was a special employee of WM is a question of 

law, which we review de novo. Kelly v. Geriatric and Med. Servs., 

Inc., 287 N.J. Super. 567, 578 (App. Div.), aff’d, o.b., 147 N.J.

42 (1996).

Our special-employee doctrine has its roots in the threeprong test recommended by Professor Larson for establishing a 

special-employment relationship:

When a general employer lends an employee to 

a special employer, the special employer 

becomes liable for workmen's compensation 

only if:

(a) The employee has made a contract of 

hire, express or implied, with the special 

employer;

(b) The work being done is essentially that 

of the special employer; and

(c) The special employer has the right to 

control the details of the work.

When all three of the above conditions are 

satisfied in relation to both employers, 

both employers are liable for workmen's 

compensation.
9 A-0591-15T2

[Blessing, supra, 94 N.J. Super. at 430 

(quoting 1A Larson, Workmen's Compensation § 

48.00, at 710 (1966)).] 

In granting summary judgment, Judge Turula found each of the 

Blessing criteria was satisfied.

As to the first factor, whether an implied contract was 

created, the court found WM's repeated assertions that it was not 

plaintiff's employer to be "largely irrelevant to the legal issue." 

Citing Kelly, supra, 287 N.J. Super. at 575, the court said "the 

focus is not upon the relationship between the two corporations, 

but rather the plaintiff and each of his potential employers." 

Ibid. Judge Turula observed, "Here, there was no dispute the 

plaintiff voluntarily accepted work from Waste Management which 

was [sic] therefore gave rise to an implied contract of 

employment." Judge Turula thus found the first factor weighed in 

favor of the special employer relationship.

Plaintiff argues that there can be no implied contract between 

him and WM because the contract between WM and Centrix precludes 

its existence. We acknowledge that the contract establishes 

responsibilities and rights as between WM and Centrix. But, as 

Judge Turula observed, the issue here regarded the relationship 

between WM and plaintiff. Pacenti v. Hoffman-LaRoche, Inc., 245 

N.J. Super. 188, 193 (App. Div. 1991) ("The employment agreement 

necessary under the Larson tests involves the limited subject of 
10 A-0591-15T2

supervision for workers' compensation purposes, not the general 

responsibility for payment of wages, withholding taxes, 

unemployment compensation responsibility, job benefits and the 

like."); see also Kelly, supra, 287 N.J. Super. at 577. Thus, the 

contractual language does not take precedence over the undisputed 

facts regarding plaintiff's employment. Moreover, finding an 

implicit contract between plaintiff and WM does not void the 

contract between WM and Centrix or create immunity for WM because 

WM is liable as an employer under the WCA. 

Turning to the second factor, the work being performed, Judge 

Turula said this factor was "clearly satisfied" because "there is 

no dispute that the work done by the plaintiff was essentially 

that of Waste Management." This factor has some overlap with the 

third factor, the right to control the details of the work. The 

"sheer weight of authority" is that the predominant factor is 

"control." Volb, supra, 139 N.J. at 116. The Court noted, 

"federal authorities . . . are uniform that the ultimate test is: 

Whose is the work being done? . . . In determining whose work is 

being done, the question of the power to control the work is of 

great importance . . . ." Ibid. (citations omitted). 

Judge Turula described the degree of control exercised by WM: 

Based on the record . . . the evidence [is] 

that Waste Management controlled the daily 

operation of plaintiff's activities. For 
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instance, Waste Management's route manager 

will determine if the Centrix employee was 

selected to work on a given day. Moreover, 

according to the deposition testimony of 

Thomas Brindley, Waste Management's district 

management, if the route manager did not want 

Centrix's employees to return, he would 

request from Centrix not to have the employee 

return to Waste Management. . . .

The judge also noted that plaintiff acknowledged he believed 

the Waste Management employee, Mark Mallett, was his supervisor.

We agree with Judge Turula that each of these criteria was 

satisfied here. Pursuant to Volb, supra, 139 N.J. at 116, citing 

Professor Larson's three-pronged test, that is sufficient to 

establish the special employer relationship. See also Vitale v. 

Schering-Plough Corp., 447 N.J. Super. 98, 117 (App. Div.), certif. 

granted, 228 N.J. 421 (2016); Hanisko, supra, 437 N.J. Super. at 

360.

Two other factors have been discussed as relevant to this 

inquiry and were considered by Judge Turula -- who paid plaintiff's 

wages and who had the power to hire, discharge or control the

employee. 

We have previously noted the direct payment of the employee's 

wages "is not necessary for determination that a special employment 

relationship exists . . . because "[t]he money used to pay 

[plaintiff's] wages came indirectly out of the fees paid by 

defendant for plaintiff's services." Walrond v. Cty. of Somerset, 
12 A-0591-15T2

382 N.J. Super. 227, 237 (App. Div. 2006) (quoting Kelly, supra, 

287 N.J. Super. at 577). Indirect compensation for services, as 

through a temporary staffing agency, is sufficient for a 

determination that a special employment relationship exists. 

Kelly, supra, 287 N.J. Super. at 577. Judge Turula accordingly 

gave little weight to the fact Centrix paid plaintiff and we agree 

with that assessment. 

The "fifth" factor considered by Judge Turula was the power 

to hire, discharge or recall plaintiff. See Kelly, supra, 287 

N.J. Super. at 577. He found that power was inherent in WM's 

control over plaintiff's day to day activities. The record also 

supports a conclusion that WM had such power because it had the 

authority to decide whether a worker could return to work for WM. 

Like the special employer in Kelly, WM lacked the power to decide 

whether plaintiff could work out of Centrix for anyone else, but 

"it had full control over whether [he] would continue to work at 

[WM]." Ibid. Therefore, we fully agree that WM had the requisite 

control over plaintiff's employment to satisfy the special 

employment relationship.

Plaintiff's remaining arguments lack sufficient merit to 

warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.