NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 5512
- 11T4

ESTATE OF MYROSLAVA KOTSOVSKA, by OLENA KOTSOVSKA, A dministrator , Plaintiff

- Respondent,

v. SAUL LIEBMAN, Defendant
- Appellant.

________________________________________ _ Argued March 20, 2013
- Decided Before Judges Grall, Simonelli and Accurso . On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L - 4258
- 09.
Robert F. Cox argued the cause for appellant (McCreedy and Cox, attorneys; Mr. Cox, on the brief s ). George E. Spaneas of the New Hampshire bar, admitted pr o hac vice, argued the cause for respondent (Smith, Stratton, Wise, Heher & Brennan, LLP, and Mr. Spaneas, attorneys; Gerald D. Wixted, and Mr. Spaneas, of counsel and on the brief s ). The opinion of the court was delivered by ACCURSO, J.A.D. APPROVED FOR PUBLICATION December 26, 2013
APPELLATE DIVISION

December 26, 2013A - 5512
- 11T4 2 D efendant S aul Lieb man appeals from a $565,806.37 final judgment in this wrongful death action, following a jury verdict in favor of plaintiff Estate of Myroslava Kotsovska (the

e state) , and from the denial of his motion for a new trial . Liebman contends that decede nt was his employee, and thus the Workers' Compensation Act's (the Act) exclusivity bar, N.J.S.A.
34: 15
- 8 , prohibits her e state from maintaining this action. The central issue on appeal is whether the question of the decedent's status as an employee or i ndependent contractor, which the jury d etermined adversely to Liebman , should have been decided in the Division of Workers' Compensation (the Division) . We conclude that the Division was the proper forum for resolution of that issue pursuant to Kristians en v. Morgan , 153
N.J. 298 (1998) , modified on other grounds , 158 N.J. 681 (1999 ) . Because the Superior Court has concurrent jurisdiction to decide whether the decedent was an employee or independent contractor, however, that error would not alone require the course of this
matter to be rerun. But as we also conclude th at the jury instructions on the issue were seriously flawed, reversal and remand is required. Because we reject Liebman 's remainin g points of error, however, we affirm the jury's damages v erdict and preserve it pending remand to the Division to determine decedent's employment status .A - 5512
- 11T4 3 The basic facts of this tragic case are easily summarized. In September 2008, Liebman , then eighty

- one years old, was living alone following the recent deat h of his wife. His daughter, Robin Ross, was making inquiries among her friends for someone who could move into her father's home, cook his meals and assist him in his daily activities. Decedent, a 59
- year - old Ukrainian citizen on an extended visit with her daughter in New Hampshire, was referred to Ross for the role . 1 Ross initially communicated with decedent, who spok e almost no English, through decedent's daughter. Decedent agreed to

come to New Jersey to meet Ross and her father and , if the
arrangeme nts were suitable , to begin work immediately. Decedent met with Ross and Liebman in Liebman 's home, accompanied by her son

- in

- law who served as a translator. The parties agreed that de cedent would move into Liebman 's home and
work seven days a wee k for on e hundred dollars a day, which she would receive in cash. Decedent was responsible for preparing three meals a day, doing the laundry, performing light housekeeping , accompanying Liebman on errands, and assisting him with whatever tasks he required. Lieb man walked with a cane and

oc casionally needed assistance on stairs or getting in or out of

1 Decedent had apparently provided similar services to a New Jersey family on an earlier visit.A - 5512
- 11T4 4 the car. Decedent was to also accompany Liebman if he chose to go out to eat, at his request. The parties did not discuss whether decedent's visa authorized her to work in this country, which it did not, or
whet her decedent was to be Liebman 's employee or considered an independent contractor. There was also no discussion as to the duration of the arrangement, although the parties did discuss the decedent returnin g to her daughter's home for the Christmas holiday. Decedent's son
- in

- law advised Ross that decedent was without health insurance, and th at he and his wife would pay her medical bills if she got sick. The parties met on October 21, 2008, and decedent be gan her duties immediately thereafter. On December 8, 2008, Liebman and decedent were running errands and stopped at the Millburn Diner
for lunch. Decedent got out of the car and stood on the sidewalk while Liebman pulled into the parking space in front of
her . As decedent stood on the side walk in front of a low patio
wall , Liebman suddenly accelerated, driving the car over the parking block and onto the sidewalk . Liebman crashed the car int o decedent, pinning her against the low wall . The accident

sev ered decedent's left leg below the knee, resulting in her
death nearly an hour later.A - 5512
- 11T4 5 The estate filed a wrongfu l death action against Liebman in Superior Court. Liebman answered and asserted an affirmative defense of lack of subject matter j uri sdiction, contending that exclusive jurisdiction was in the Division. Liebman subsequently filed a motion to dismiss on the same grounds. The
court denied the motion and a dvised the parties that it would entertain a motion for summary judgment after t he completion of discovery. If after hearing that motion the court concluded that decedent was an employee, the matter would be transferred to the Division. Following discovery, Liebman fil ed a motion before another judge to transfer the case to the Divi sion . That judge denied the motion because there was no claim pending in the Division
and the limitations period for filing a workers' comp ensation petition had expired . Liebman's motion for reconsideration was denied. Liebman moved again for reconsider ation , this time attaching a certification from his homeowner ' s insurance carrier
ackn owledging the existence of workers' compensation coverage and notice of the claim. The carrier conceded that the accident arose out of the course of decedent's employmen t and agreed not to raise a limitations defense to transfer of the claim. The
court again denied the motion . We denied Liebman 's motion forA - 5512
- 11T4 6 leave to appeal. Liebman 's subsequent motion for summary judgment was also denied. The case was tried over sever al days. The jury determined that decedent was an independent contractor and awarded the estate $300,00 0 for decedent's pain and suffering and $225,000
fo r her wrongful death. Liebman 's motion for new trial was denied. This appeal followed.
We conclude that this matter should have been transferred to the Division for determination of decedent's employment
status. The Court in Kristiansen held that, although the Superior Court and the Division have concurrent jurisdiction to decide an exclusivity defens e, primary jurisdiction is in the Division wh ere , as here, "no issue has been raised that the Division cannot decide in a manner that is binding on all the interested parties. " Kristiansen , supra , 153 N.J. at 311. The trial court rejected that Kristians en controlled
because both it and Wunschel v. City of Jersey City , 96 N.J. 651 (1984), on which Kristiansen relied, involved situations , unlike this one, in which there was no dispute that the deceased worker was an employee covered by the Act. It noted t he Kristiansen Court emphasized that the Legislature did not intend workers who had accepted the provisions of the Act, pursuant to N.J.S.A.
34:15
- 7, to have an election as to whether to pursue common

- lawA - 5512
- 11T4 7 tort remedies. Kristiansen , supra , 153 N.J. at 311
- 12. Reasoning that decedent could not be deemed to have accepted the provisions of the Act if she were not defendant's employee, as her estate maintained, the trial court determined that the Division's jurisdiction could not be considered exclusive while a dispute existed over decedent's employment status. The court
thus concluded that the Superior Court "must have jurisdiction to determine whether plaintiff is an employee," at least when the plaintiff has not also filed a workers' compensation petition.
We think that Wunschel and Kristiansen compel a different
result. In Wunschel a city police officer , Wunschel, was accidently shot and killed by his on - duty partner, who was picking Wunschel up at his second job to start their tour.
Wunschel , supra , 9 6 N.J. at 655
- 56 . Wunschel's widow filed a petition for workers' compensation benefits against both of Wunschel's employers , and a wrongful death suit against them as well as against Wunschel's partner . Id. at 656. The central issue in both actions was whether Wu nschel was working for the City or his second employer when he was shot. Id. at 657. When the case reached the Supreme Court, t he Wunschel Court was confronted with a situation in which the Division and the Superior Court had reached the opposi te result on that sameA - 5512
- 11T4 8 factual issue . Id. at 658 . In order to avoid such "illogical inconsistenc[ies]" in the future, the Court determined to "design a procedure to 'assure that a controversy, or its most critical facets, will be resolved by the forum or body which, on a comparative scale, is in the best position by virtue of its statutory status, administrative competence and regulatory expertise to adjudicate the matter.'" Kristiansen , supra , 153
N.J. at 309 (quot ing Wunschel , supra , 96 N.J. at 664 ) . The Court decided that th e best forum for "employment issues" is the Division. Wunschel , supra , 96 N.J. at 664. T he
Wunschel Court acknowledged , however, that the Division's limited jurisdiction would on occasion make it impossible for the Compensation Court to exercise jurisdiction over a party whose participation was necessary to re solve all aspects of the
contr oversy , such as when the fellow
- servant defense is implicated and the fellow servant declines to intervene in the Division proceeding . Id. at 664, 665
- 67. In such cases , the Court recognized concurrent jur isdiction in the Superior Court to decide the employment issues related to the fellow
- servant defense . Id. at 666.
T he Court revisited the question of the concurrent jurisdiction of the D ivis ion and the Superior Court in these matters in Kristiansen . Kristiansen was employed by the StateA - 5512
- 11T4 9 as a bridge operator. Kristiansen , supra , 153 N.J. at 302 . He

was struck and killed by a motorist as he was leaving the bridge at the end of his shift. Id . at 3 04. His widow filed both a claim petition in the Division and a wrongful de ath action against the State and the driver. Ibid. The trial court rejected the State 's exclusi vity defense , concluding t hat it had concurrent jurisdiction to decide whethe r Kristiansen was still within the scope of his employment when he was run over on the bridge. Id. at 302 . Describing the issue as " different from, yet related to, the employment issue raised in Wunschel ," the Kristiansen Court held that although the Sup erior Court had concurrent jurisdiction to decide whether Kristiansen was within the scope of his employment at the time of his death , primary jurisdiction over that question was in the Division . Id. at 313
- 14 ( explaining that primary jurisdiction analysi s requires determining which of possible tribunals has predominant interest in, and expertise to decide, disputed issue). The Court determined that the Division's jurisdiction was primary because , unlike in Wunschel , the Division could decide all aspects of the controversy in a manner b inding on all the interested parties,
and " [r]egardless of whether the employer admits or denies the compensability of an accident, the Division is the forum bestA - 5512
- 11T4 10 suited to decide whether the accident falls within the covera ge formula of the Act. " Id. at 313.
Thus , a lthough it is certainly true, as the trial court noted, that both Wunschel and Kristiansen addressed the compensability of the accidents that befell those workers and not their status as employees, 2 we think tha t distinction less important than the Court's broader point that the Division is "the forum best sui ted to decide employment issues, " between the Superior C ourt and the Division in a primary jurisdiction analysis. Id. at 309 , 313
- 14 . Larson likewise ques tions the
soundness of hinging the primary jurisdiction of a compensation
board on the distinction between employment status and compensability of the accident, 6 Lex K. Larson, Larson's Workers' Compensatio n Law § 102.06 (Mathew Bender rev. ed. 2013) ( cri ticizing distinction on basis that employment status is more "fundamental" than compensability as "very questionable" ), arguing that the Board is equally without jurisdiction to award compensation in the absence of employment relation as injury in
the cour se of employment . Id. at § 130.07.

2 The precise question in Wunschel was whether the deceased police officer was working a s an employee of Jersey City's police department or moonlighting for a private employer, or both, at the time of his death. Wunschel , supra , 96 N.J. at 660. Accordingly, the question in that case is closely analogous to the employment status issue presen ted in this matter.A - 5512
- 11T4 11 While the presence of other parties could, depending on the circumstanc es, counsel against transfer to the Division,
Wunschel , supra , 96 N.J. at 666, here , because there was no such impediment , Kristiansen co mpelled th e transfer , 153 N.J. at 313 . Accordingly, we hold that because Liebman's exclusivity defense turned on whether decedent was his employee or an independent contractor, an issue over which the Division could enter a binding judgment, and one which the Divis ion was best suited "by virtue of its statutory status, administra tive competence and regulatory expertise to adjudicate," id. at 309 (quoting
Wunschel , supra , 96 N.J. at 664), the trial court should have
transferred the case to the Division.
Because the L aw Division had concurrent jurisdiction to decide whether the decedent was an employee or independent contractor, the failure to recognize the Division's primary jurisdiction would not, standing alone, require the case to be

revers ed . Kristiansen , supra , 153 N.J. at 318. We agree with Liebman, however, that the instructions to the jury were seriously flawed and clearly capable of producing an unjust
result , thus requiring reversal . R. 2:10
- 2.
The court charged the jury generally regarding the distinct ions between an employee and a general contractor withA - 5512
- 11T4 12 reference to a lengthy list of factors . Specifically, and by way of example, the judge instructed that

hiring, payment of regular ly weekly sum, provision of tools, supplies of a workplace and being t erminable at will are factors that weigh in favor of the employer/employee relationship. Lack of payroll deductions, payment in cash are factors that weigh against the employer/employee relationship.
Dete rmining whether an individual is an employee or a n independent contractor is often difficult and a recitation of
factors organized into "pro - employee and pro
- independent contractor lists is not particularly helpful " in accomplishing
the task. Marcus v. E. Agric. Ass'n , 58 N.J. Super. 584, 600 (App. Div. 1959) (Conford, J. A.D. dissenting), rev'g on dissent , 32 N.J. 46 0 (1960). Moreover, b ecause the Act is socially remedial legislation, "[t]he term 'employee' is to be defined liberally in order to bring as many cases as possible within the scope of the Wo rkers' Compensation Act," even when the employee is attempting to have himself excluded from its coverage. Sloan v. Luyando , 305 N.J. Super. 140, 147 (App. Div. 1997).

T he trial court's instructions focused only on defining
whether decedent was an employee based on the control test , which is grounded i n traditional master

- servant principles . New Jersey Prop. - Liab. Ins. Guar. Ass'n v. State , 195 N.J. Super. 4, 14 (App. Div.), certif. denied , 99 N.J. 188 (1984 ) ( explainingA - 5512
- 11T4 13 the control test's four fac tors as the degree of control the employer has the right to exercise, the method of payment, who furnishes the equipment , and the right of termination). In compensation cases, however, the Supreme Court has adopted an additional "economic and functional " test, of which the determinative criteria are " ' not the inconclusive details of the arrangement between the parties, but rather the extent of the economic dependence of the worker upon the business he serves and the relationship of the nature of his work t o the operation of that business. ' " Id. at 10 (quoting Marcus , supra , 58 N.J. Super. at 603 (Conford, J.A.D., dissenting)) . The trial court did not instruct the jury on this relative nature of the work test, although highly relevant here as decedent woul d appear to have been entirely economically dependent on Liebman . In addition , the trial court's instruction that the lack of payroll deductions and payment in cash are factors weighing against a finding of employment was incomplete and misleading.
Altho ugh th ey are obvious factors suggesting independent contractor status, we acknowledged the ir redu ced importance in this context more than fifty years ago. Brower v. Rossmy , 63 N.J. Super. 395, 40 5
- 06 (App. Div. 1960) (noting that factor of lack of payroll deductions for withholding taxes was de
emphasized in Congleton v. Pura
- Tex Stone Corp. , 53 N.J. Super.A - 5512
- 11T4 14 282, 290 (App. Div. 1958 ) , certif. denied , 34 N.J. 65 (1961) ) . We have cautioned that t hese factor s , included in the control
test , must be viewed cri tically in light of Larson's acknowledgment of the desire on the part of some " employers to avoid both the financial cost and the bookkeeping and reporting inconvenience that goes with workmen's compensation, unemployment compensation, social security and the like." Hannigan v. Goldfarb , 53 N.J. Super. 190, 205
- 06 (App. Div. 1958) (quoting Larson, supra , §§ 43.51, 45.10) ( finding taxi driver to be "employee" for purposes of the Act despite official title of independent contractor). Their inclusion by the trial judge without further explanation , part of a larger failure to tailor the specifics of
the court's charge t o the facts of the case, combined with the absence of an instruction on the relative nature of the work
test , resulted in a charge that did no t adequately convey the
law and was clearly capable of producing an unjust result. Sons of Thunder , Inc. v. Borden, Inc. , 148 N.J. 396, 418 (1997). 3

3 Although Liebman lodged several objections to the court's charge, the failure to include the relative nature of the work test and the instruction on the effect of the cash payments and lack of withholding were not among them. Neverth eless, we are satisfied that they are appropriately noticed under the plain error doctrine. Ewing v. Burke , 316 N.J. Super. 287, 293 (App. Div. 1998) (explaining that under the plain error rule, even when counsel fails to object to jury instructions, "a c harge (continued)A - 5512
- 11T4 15 Turning to the issue of damages, Liebman contends that the
court 's improper judicial notice of decedent's consci ous pain and suffering resulted in an unjustified award o n her survival claim . He also contends that because the Division should have decided whether decedent was an employee or independent contractor, the jury's entire damages verdict must likewis e be set aside. We disagree . The purpose of taking judicial notice is to save time and promote judicial economy by dispensing with the necessity of proving facts that cannot be seriously disputed and are generally or universally known. State v. Silva , 39 4 N.J. Super. 270, 275 (App. Div. 2007). There is no dispute that decedent did not die instantaneously. As counsel and the court were discussing the court's introductory remark s to the jurors in anticipation of voir dire , Liebman stipulated to neglig ence and sought to preclude details of the accident being presented to the jurors. Plaintiff objected as such details were relevant to the estate's survival claim. That led to the following exchange
between defense counsel and the court.

[DEFENSE COUNSEL]: [T he decedent] was conscious before but as soon as the accident occurred, we have no idea. That is an area (continued) which misleads the jury will require a reversal and a new trial").A - 5512
- 11T4 16 for expertise unless the c ourt can take judicial notice of that. I don't believe the court can. THE COURT: I'll take judicial notice that anybody who is conscious and gets their leg traumatically amputated, suffered pain.

"[F] acts that can be reasonably questioned or disputed may not be judicial ly notice d . " Ibid. Accordingly, the trial judge should not have taken judicial notice of decedent's conscious pain and suffering as a result of the accident, which he did.

T hat error , however, was harmless as plaintiff developed ample evidence from both Liebman , as well as a man who stopped to help , that decedent appeared conscious for several minutes
f ollowing the accident , her eyes were open, she was breathing laboriously, murmuring or groaning , and appeared to be trying to respond to those speaking to her . Smith v. Whi taker , 160 N.J. 221, 236 (1999) ( noting New Jersey allows recovery for pain and
suf fering when it can be shown that decedent survived her injuries, "however briefly" ) . Accordingly, we reject Liebman's challenge to the jury's award for pain and suffering on that ground. At oral argument, we asked the parties to brief their positions on whether the jury's verdict on damages coul d stand were we to remand the question of decedent's employment status to the Division and it were to conclude that decedent was anA - 5512
- 11T4 17 independent contractor. Liebman contends that the jury's damages verdict must be set aside in that event because the verdict "was tainted by evidence and testimony of witnesses which the jury should never have been exposed to." In essence, Liebman posits that the jury may have punished him for appearing
to have failed to provide deced ent with the benefits of employment during her life then seeking the shelter of the Act
once she was dead . T he proofs would certainly be somewhat different in a trial limited to damages, but that alone is insufficient to set aside the jury's damages verdi ct . Truchan v. Sayreville Bar & Rest.,
Inc. , 323 N.J. Super. 40, 53 (App. Div. 1999) (preserving a damages award pending a new trial on liability despite reversible error because "the liability issues and the damages issues were fairly separable"); Showal ter v. Baril a ri, Inc. , 312 N.J. Super. 494, 515
- 16 (App. Div. 1998) (remanding for a new trial as to liability only as "none of the errors identified impacted on the damage verdict " ) . Except with regard to the claim as to judicial notice, which we have re jected, Liebman does not claim that the damages verdict is excessive , and we do not find it so . Jastram v. Kruse , 197 N.J. 216, 228 (2008) (explaining that damages awards should be set aside only upon aA - 5512
- 11T4 18 finding of manifest miscarriage of justice). Accord ingly, we preserve it pending remand to the Division. We have considered Liebman's remaining arguments and determined that they are not of sufficient merit to warrant discussion in a written opinion. R. 2: 11
- 3(e)(1)(E). To summarize , we reverse the jud gment on liability only and
remand the matter to the Division to determine whether the decedent was defendant's employee or performed services for him as an independent contractor. The Division shall thereafter transfer the matter to the Law Division, whi ch shall, in accordance with the Division's determination of decedent's employment status, either reinstate the judgment in favor of the
estate or dismiss the matter with prejudice in accordance with this opinion. Affirmed in part, reversed in part, and re manded for further proceedings. We do not retain jurisdiction.