                        NOT FOR PUBLICATION WITHOUT THE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.




                                       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 October 13, 2017

              Before Judges Espinosa and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              0597-13.

              Daniel W. Sexton argued the cause for
              appellant.

              Paul Lanza argued the cause for respondents
              (Callahan & Fusco, LLC, attorneys; Mitchell
           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


                                       2                             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.

                                       3                          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.




                                 4                          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

                                    5                          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.




                      6                          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 co-

employees, 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.

                                     7                             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 three-

prong 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.

                                     8                             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

                                       9                           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

                                 10                           A-0591-15T2
            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,

                                 11                                 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.



                                       12                                A-0591-15T2
