SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1088-16T3

JOHN DUTCHER,

Plaintiff-Appellant,

v.

PEDRO PEDEIRO and BLACK 

ROCK ENTERPRISES, LLC, 

Defendants-Respondents.

________________________________

Submitted October 25, 2017 – Decided

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L4321-15.

Stathis & Leonardis, LLC, attorneys for 

appellant (Marc D. Portlock, on the briefs).

O'Toole Fernandez Weiner Van Lieu, LLC, 

attorneys for respondents (Cindy M. Yu, on the 

brief).

PER CURIAM 

Plaintiff John Dutcher, a police officer, appeals from the 

summary judgment dismissal of his personal injury complaint and 

an order denying his motion for reconsideration. A vehicle struck 

NOT FOR PUBLICATION WITHOUT THE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.

November 22, 2017
2 A-1088-16T3

and injured plaintiff while he was directing traffic at a 

construction site. The contractor, defendant Black Rock 

Enterprises, LLC, owned the vehicle, and Black Rock's employee, 

defendant Pedro Pedeiro, was driving it when the accident 

occurred.

1 The trial court concluded plaintiff was a special 

employee of defendant and thus the Workers' Compensation Act's 

exclusive remedy barred his personal injury claim. 

The summary judgment motion record supported the facts 

defendants set forth in their statement of material facts. 

Plaintiff did not respond to them, so the facts were deemed 

admitted. R. 4:46-2(b). The facts established an unrefuted prima 

facie case that plaintiff was defendant's special employee. We,

therefore, affirm the summary judgment order and the order denying 

reconsideration. 

Ten months after plaintiff commenced this personal injury 

action by filing a complaint, defendants moved for summary 

judgment. The discovery end date would not expire for another two 

months. Six days before defendants filed their motion, plaintiff 

had scheduled depositions of himself, Pedeiro, and a 

representative of Black Rock. The trial court decided defendants' 

 

1 All further references of singular "defendant" are to Black Rock 

only. 
3 A-1088-16T3

summary judgment motion before the depositions were taken and two 

days after the discovery end date.

Defendants filed with the summary judgment motion a statement 

of material facts supported by the pleadings and an affidavit of 

defendant's Managing Member. The facts establish that on the date 

of the accident, defendant was performing work under a contract 

with Middlesex County to provide milling services on county roads. 

Defendant hired police officers through the Township of Woodbridge 

to direct traffic during the time defendant was working on the 

roads. On the date of plaintiff's accident, defendant's Managing 

Member submitted a request to the Township for police officers to 

provide Extra Duty Services at the construction site located at 

the intersection of Woodbridge Center Drive and Plaza Drive. The 

Managing Member's request specified "exactly how many officers[]

[and] patrol cars were needed, the time, location, and dates." In 

her request, the Managing Member further specified "exactly what 

services were required and what duties and responsibilities were 

expected to be performed[.]" In response, plaintiff "was assigned" 

to provide the requested Extra Duty Services at the intersection. 

According to the Managing Member's affidavit, on the day of 

the accident, plaintiff "reported to the [s]ite, accepted 

instruction and direction, complied with [defendant's] rules, 

requirements, and policies, in the performance of work on behalf 
4 A-1088-16T3

of [defendant]." The Managing Member further averred that on the 

date of plaintiff's accident, he "performed work on behalf of 

[defendant] at [defendant's] request, and under [defendant's] 

direction and control" from 8:00 a.m. until 4:00 p.m. During that 

time, plaintiff reported to defendant's supervisor. Further, 

defendant's foreman directed plaintiff as to where and how to 

direct traffic. According to the Managing Member, defendant "had 

sole control over the details of the work performed by [plaintiff,] 

. . . [and] would instruct [p]laintiff where and how to direct 

traffic, depending on the progress and status of the milling 

work[.]" The Managing Member asserted the Township "maintained

no control, direction, or supervisory authority over [p]laintiff's 

work at the [s]ite." Further, "[defendant] had the power and 

authority to recall [plaintiff] for his services, or discontinue 

his services if they were no longer needed or were found by 

[defendant] to be unsatisfactory." Defendant admitted Pedeiro was 

the employee in the construction vehicle with a "bucket" that 

allegedly struck plaintiff. 

Defendant reimbursed the Township for plaintiff's wages. The 

Managing Member averred in an affidavit the Township would send 

defendant invoices enumerating the hours plaintiff worked "along 

with the fees and hourly wages charged." Defendant would then pay 

the Township for plaintiff's services. 
5 A-1088-16T3

In addition to the pleadings, defendants submitted a letter 

from the third party administrator for Central Jersey Joint 

Insurance Fund, the workers' compensation program of which the 

Township was a member. The third party administrator sent the 

letter to defendant's insurer. The letter stated that because 

plaintiff "was working on behalf of both the Township of Woodbridge 

and [defendant], [the] matter [was] a dual employment case of 

which [defendant was] responsible for 50% of all paid on the case." 

On appeal, plaintiff makes substantive and procedural 

arguments. Substantively, plaintiff contends the facts defendant 

established did not support the trial court's finding that 

plaintiff was a special employee of defendant; and the court 

erroneously relied on defendants' misstatements concerning payment 

of plaintiff's workers' compensation benefits in making its 

determination. Plaintiff asserts the court made procedural errors 

by accepting defendants' "material statement of facts" rather than 

a "statement of material facts" required by Rule 4:46-2(a); by 

deciding the motion without insisting defendants provide the

Township's position on plaintiff's employment classification; and 

by deciding the motion before discovery was complete. 

Plaintiff's procedural arguments are without sufficient merit 

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

We note, however, that plaintiff himself could have readily refuted 
6 A-1088-16T3

most of the material facts developed by defendants, particularly 

those directly bearing on who plaintiff reported to while working 

at the construction site, who supervised him, and who determined 

the circumstances under which he worked while directing traffic 

at the construction site.

Appellate courts "review[] an order granting summary judgment 

in accordance with the same standard as the motion judge." Bhagat 

v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). We "review 

the competent evidential materials submitted by the parties to 

identify whether there are genuine issues of material fact and, 

if not, whether the moving party is entitled to summary judgment 

as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial 

court's determination that a party is entitled to summary judgment 

as a matter of law is not entitled to any "special deference," and 

is subject to de novo review. Cypress Point Condo. Ass'n v. Adria 

Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).

We review a trial court's denial of a motion for 

reconsideration under an abuse of discretion standard. Davis v. 

Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010) (citing 

Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 

1997)), aff'd in part and rev'd in part on other grounds, 209 N.J.

269, 277 (2012).
7 A-1088-16T3

The New Jersey Workmen's Compensation Act, N.J.S.A. 34:15-1 

to -69.3, provides employees with guaranteed recovery from their 

employers for workplace injuries, in exchange for a waiver of the 

right to sue their employer. N.J.S.A. 34:15-8. For purposes of 

workers' compensation, a worker may have two employers, "both of 

whom may be liable in compensation." Hanisko v. Billy Casper Golf 

Mgmt., 437 N.J. Super. 349, 360 (App. Div. 2014) (quoting 

Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 

1988), certif. denied, 115 N.J. 59 (1989)). In such situations, 

recovery of workers' compensation from one employer "bars the 

employee from maintaining a tort action against the other for the 

same injury." Ibid. (quoting Anthenuisse, supra, 229 N.J. Super.

at 402).

A "special employment relationship" where the "special 

employer" is also responsible for worker's compensation exists 

"[w]hen a general employer lends an employee to a special 

employer," and "(a) [t]he employee has made a contract of hire, 

express or implied, with the special employer; (b) [t]he work 

being done is essentially that of the special employer; and (c) 

[t]he special employer has the right to control the details of the 

work." Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430 

(App. Div. 1967) (quoting 1A Larson, Workmen's Compensation

(1966), § 48.00, at 710 (now codified as 7 Lex K. Larson, Larson's 
8 A-1088-16T3

Workers' Compensation § 67.01 (2017) [hereinafter Larson])). In 

determining whether a special employee relationship has developed, 

courts also consider "whether the special employer (1) pays the 

lent employee's wages, and (2) has the power to hire, discharge 

or recall the employee." Ibid. (citation omitted).

When a court weighs these five factors to determine whether 

a special employment situation exists, "[n]o single factor is 

'necessarily dispositive, and not all five must be satisfied in 

order for a special employment relationship to exist.'" Walrond 

v. Cnty. of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006) 

(quoting Marino v. Ind. Crating Co., 358 F.3d 241, 244 (3rd Cir. 

2004)). "Generally, however, it is believed that the most 

significant factor is the third: whether the special employer had 

the right to control the special employee." Ibid. (citing Volb

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

In the case before us, the undisputed facts on the motion 

record, deemed admitted by virtue of plaintiff's non-response, 

established the five factors. As to the first factor, though 

defendant contracted directly with the Township for the assignment 

of police officers for Extra Duty Services, "[t]he consent [for 

contracting] may be implied from the employee's acceptance of the 

special employer's control and direction" of the employee. Larson, 

supra, § 67.02[3]. Furthermore, where an "employee 'knew he would 
9 A-1088-16T3

be hired out to special employers, and accepted such employers 

just as he accepted the general employer . . . [the employee] 

intended to have two employers[.]'" Blessing, supra, 94 N.J. 

Super. at 434 (quoting Chickachop v. Manpower, Inc., 84 N.J. Super.

129, 137 (Law Div. 1964)). Here, plaintiff signed up for Extra 

Duty Services knowing the Township would hire him out to a second 

employer and would expect him to perform his duties for that 

employer. Therefore, as asserted by defendants, "[p]laintiff 

reported to the [s]ite in acceptance of the assignment as an Extra 

Duty Officer to perform work on behalf of [defendant]." 

The second factor requires "the work being done is essentially 

that of the second employer." Larson, supra, § 67.01[1]. 

Defendants asserted "[p]laintiff directed traffic . . . for 

[defendant's] benefit." In that regard, when requesting officers 

from the Township, defendant had "specified exactly how many 

officers[] [and] patrol cars were needed, the time, location, and 

date[s]" they were needed, and "exactly what services were required 

and what duties and responsibilities were expected to be 

performe[d]." Plaintiff was directing traffic for the benefit of 

defendant as defendant performed milling services on county roads. 

The need for someone to direct traffic was directly related to 

defendant's work, and as such is essentially the work of defendant. 

See Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 453-54, 
10 A-1088-16T3

458 (App. Div. 1989) (determining an off-duty police officer 

assigned to work for a private business had dual employment with 

the private business and the Police Department, even though his 

assignment "was serving . . . private interest[s] as well as the 

public interest").

The third and perhaps most significant factor is that the 

special employer has the right to control the details of the work. 

Here, according to defendants' undisputed statement of facts, 

"[p]laintiff directed traffic in accordance with [defendant's] 

request, directions, and for [defendant's] benefit. During this 

assignment, [defendant] had sole control over the [p]laintiff with 

respect to directions, instructions, and ability to discontinue 

his services if they were no longer needed or were unsatisfactory." 

Upon arrival at the site, plaintiff would check in with defendant's 

supervisor. Defendant also "had a foreman on site who directed 

[plaintiff] as to where and how to direct traffic." The directions 

would "depend[] on the progress and status of the milling work 

[being] performed[.]" These facts adequately demonstrate control 

over plaintiff's work. While defendant may not have directly 

controlled exactly how plaintiff chose to direct traffic, 

defendant did have adequate control over when and where plaintiff 

performed his services. 
11 A-1088-16T3

The next factor is whether the special employer "pays the 

lent employee's wages[.]" Blessing, supra, 94 N.J. Super. at 430. 

In this case, "[f]ollowing the completion of the assignment, 

[defendant] paid [p]laintiff's wages indirectly through payment 

of an invoice fee to the Township." Plaintiff argues this does 

not satisfy the requirement that the special employer pay the 

wages, because the special employer is paying the Township, who 

later pays plaintiff. However, the special employer does not need 

to directly pay the special employee for a special employment

relationship to exist. See Kelly v. Geriatric & Med. Servs., 

Inc., 287 N.J. Super. 567, 577 (App. Div.) (finding direct payment 

would be more persuasive, but is not necessary for a finding of 

special employment), aff'd 147 N.J. 42 (1996). Particularly 

telling in this arrangement is the note at the bottom of the 

invoices from the Township to defendant: "Please pay on time. The 

officers do not get paid until I receive the payment from you."

Lastly, the special employer must have "the power to hire, 

discharge or recall the employee" in order for there to be a 

special employment relationship. Blessing, supra, 94 N.J. Super.

at 430. Defendant had such authority as to its project. Defendant

was able to "discontinue [plaintiff's] services if they were no 

longer needed or were unsatisfactory." 
12 A-1088-16T3

Based on defendants' undisputed statement of material facts, 

plaintiff was acting as a special employee of defendant at the 

time of the accident. Because plaintiff recovered worker's 

compensation benefits from the Township, plaintiff is barred from 

seeking further recovery through suit against defendant.

Plaintiff places much significance on defendant's alleged 

denial that he was an employee for purposes of workers' 

compensation. Plaintiff alleges defendant has denied the 

Township's claim for contribution in the workers' compensation 

action. This is not material to the action before us. As 

previously noted, in the context of this case, recovery of workers' 

compensation from one employer (the Township) bars the employee 

from maintaining a tort action against the other. Hanisko, supra, 

437 N.J. Super. at 360. 

The trial court properly granted defendants' summary judgment 

motion on the record before it. The trial court also properly 

denied plaintiff's motion for reconsideration. We agree with the 

trial court that plaintiff's reconsideration motion was an attempt 

to expand the summary judgment record and reargue the summary 

judgment motion. The trial court did not abuse its discretion by 

declining to consider on a reconsideration motion material that 

plaintiff could have submitted in opposition to the summary 

judgment motion. 
13 A-1088-16T3

Affirmed.