                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2004

Marino v. Ind Crating Co
Precedential or Non-Precedential: Precedential

Docket No. 02-4429




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"Marino v. Ind Crating Co" (2004). 2004 Decisions. Paper 951.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/951


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                         PRECEDENTIAL         Robert M. Miele          [ARGUED]
                                              Burke, Miele & Golden
    UNITED STATES COURT OF                    100 Washington Avenue
           APPEALS                            P.O. Box 397
     FOR THE THIRD CIRCUIT                    Suffern, NY 10901
                                                Counsel for Appellants

              No. 02-4429                     Stephen B. Fenster
                                              Valerie A. Vladyka          [ARGUED]
                                              Gallo Geffner & Fenster
        LAWRENCE MARINO;                      115 West Century Road
          LAURA MARINO,                       Paramus, NJ 07652
               Appellants                       Counsel for Appellee

                    v.

  INDUSTRIAL CRATING CO. d/b/a                      OPINION OF THE COURT
    INDUSTRIAL CRATING AND
       RIGGING COMPANY;
 OSCAR J. BOLDT CONSTRUCTION                  RENDELL, Circuit Judge.
           COMPANY;
      MARCAL PAPER MILLS                             Lawrence Marino, an electrician
                                              employed by Kleinknecht E lectric
                                              Company (“KEC”), was injured on August
 Appeal from the United States District       7, 1998, in an accident during construction
  Court for the District of New Jersey        at the Marcal Paper Mills in Elmwood
    (D.C. Civil No. 99-cv-04002)              Park, New Jersey. At issue in this appeal
      District Judge: Honorable               is whether Marino, who was working with
       Dickinson R. Debevoise                 riggers on a task associated with the
                                              construction project at the time of his
                                              injury, should be deemed a “special
       Argued November 20, 2003               employee” of the rigging company under
                                              New Jersey law. Because our jurisdiction
   Before: RENDELL, BARRY and                 is based on the diversity of citizenship of
      MAGILL*, Circuit Judges.                the parties,1 and New Jersey law applies,2

        (Filed February 19, 2004)
                                                     1
                                                     The District Court had jurisdiction
                                              over Marino’s negligence action under 28
*Honorable Frank J. Magill, Senior            U.S.C. § 1332(a)(1), as Marino is a citizen
Circuit Judge for the Eighth Circuit,         of New York, ICR is a New Jersey
sitting by designation.                       corporation with its principal offices in
                                              Mahwah, New Jersey, and the amount in

                                          1
our task is to predict how the courts of                                 I.
New Jersey would resolve this issue if
                                                           In order to gain a contextual
presented with these facts.
                                                   orientation, before exploring the facts, we
        We do not write on a clean slate, as       will review the basic principles underlying
the courts of New Jersey have spoken on            this issue. The New Jersey courts have
this general issue several times, and we           made it clear that special employer cases
have recently addressed this issue applying        like this one are set against the backdrop
New Jersey law. The application of the             of New Jersey’s statutory workers’
law to the specific facts of M arino’s work        compensation scheme, set forth in the
situation requires a careful analysis of the       Workmen’s Compensation Act (“WCA”),
principles developed in the case law               N.J. Stat. Ann. §§ 34:15-1 to -142. See,
related to “special employment” situations.        e.g., Santos v. Standard Havens, Inc., 541
The District Court held that, applying             A.2d 708, 712 (N.J. Super. Ct. App. Div.
those principles, Marino was a “special            1988) (discussing the W CA and its
employee” of the defendant, Industrial             definition of employees who are covered
Crating and Rigging Company (“ICR”).               by the Act). Therefore, we must first have
Since special employee status precludes            an understanding of the WCA and the
the bringing of a negligence action against        policies behind it.
the special employer, the District Court
                                                           In New Jersey, employees who are
granted summary judgment in favor of
                                                   injured while working are to receive
ICR and dismissed M arino’s action with
                                                   workers’ compensation benefits without
prejudice. We predict that the New Jersey
                                                   regard to fault. Gore v. Hepworth, 720
Supreme Court would conclude otherwise,
                                                   A.2d 350, 353 (N.J. Super. Ct. A pp. Div.
and will accordingly reverse and remand
                                                   1998).      When an employee receives
so that the matter may proceed to trial.
                                                   workers’ compensation benefits, he
                                                   forgoes the right to seek additional tort
                                                   remedies from his employer. Id. This
                                                   waiver of remedies is explicitly detailed in
                                                   the exclusivity provision of the WCA
controversy exceeds $75,000. We have               itself: “Such agreement [to accept WCA
jurisdiction over the appeal of the District       benefits] shall be a surrender by the parties
Court’s final order pursuant to 28 U.S.C. §        thereto of their rights to any other method,
1291.                                              form or amount of compensation or
       2                                           determination thereof than as provided in
        As the District Court’s jurisdiction
                                                   [the WCA], and shall bind the employee .
over this matter was based on diversity, the
                                                   . . as well as the employer . . . .” N.J. Stat.
law of the forum state, New Jersey, applies
                                                   Ann. § 34:15-8.
on the substantive issue of special
employment.       Erie Railroad Co. v.                    The WCA was enacted as a
Tompkins, 304 U.S. 64, 78 (1938).

                                               2
mechanism that would protect employees             228 A.2d 711, 713 (N.J. Super. Ct. App.
who are injured in the workplace.                  Div. 1967). The result of this broad
However, another important objective of            definition is that the acceptance of
the WCA was to pass along the costs of             workers’ compensation benefits from one
industrial accidents “as part of the cost of       employer will preclude a common law tort
the product or service provided.” Santos,          action brought by the employee against
541 A.2d at 712. Thus, New Jersey courts           another employer. Id. The courts of New
have liberally construed the term                  Jersey, in analyzing situations in which an
“employee” in the WCA “in order to bring           employee might be found to have, in
as many cases as possible within [its]             addition to his primary employer, an
scope.” Id. This is true when a plaintiff          additional “special employer,” have
seeks its protection, as well as “when he          developed a five-factor test. This test,
attempts to have himself excluded from             based on a treatise on workers’
the coverage of the act.” Id. at 713               compensation, was first articulated and
(quoting Rutherford v. Modern Transp.              explained in Blessing.
Co., 320 A.2d 522 (N.J. Super. Ct. Law
                                                           The five factors of the test are
Div. 1974)).
                                                   summarized as follows: 1) whether there is
        In construing the term “employee”          an express or implied contract for hire
liberally, New Jersey courts have made it          between the employee and the employer;
clear that an employee may have several            2) whether the work being done is that of
employers for WCA purposes, any one of             the employer; 3) whether the employer has
which may be held liable for workers’              a right to control the details of the work; 4)
compensation benefits when that employee           whether the employer pays the employee’s
is injured.3 Blessing v. T. Shriver & Co.,         wages or benefits; and 5) whether the
                                                   employer can hire or fire the employee.
                                                   Blessing, 228 A.2d at 713 (relying in part
       3
        An employee with multiple                  on 1A Arthur Larson, Workmen’s
employers for WCA purposes is essentially          Compensation § 48.00, at 710 (1966)).
free to choose the one employer from               None of these factors is necessarily
whom he will receive his workers’                  dispositive, and not all five must be
compensation benefits. Once he has been            satisfied in order for a special employment
awarded benefits, he may not seek                  relationship to exist. Id. at 715. However,
identical benefits from another one of his         several courts have emphasized the
employers, nor may he pursue a common
law tort action against any of his
employers. N.J. Stat. Ann. §§ 34:15-7, -8.         a s pa r tie s to the co mp ensa tion
However, if multiple employers are found,          proceedings.    See Conway v. Mister
the employer who is ordered to pay the             Softee, Inc., 225 A.2d 707, 708-09 (N.J.
benefits may seek pro rata contribution            Super. Ct. App. Div. 1967), aff’d, 239
from the other employers if they are joined        A.2d 241 (N.J. 1968).

                                               3
importance of the third factor – the right to          subcontracted with ICR for its assistance
control. See, e.g., Volb v. Gen. Elec.                 with the installation and rigging of heavy
Capital Corp., 651 A.2d 1002, 1005 (N.J.               electrical switchgear sections, which had
1995) (stating that “the most important                to be hoisted to the second floor of a
factor in determining a special employee’s             building on the site and moved to their
status is whether the borrowing employer               point of installation.         W hile the
had the right to control the special                   subcontract specifically delegated to ICR
employee’s work”); Mahoney v. Nitroform                the rigging work involved in the project,
Co., 120 A.2d 454, 458 (N.J. 1956)                     KEC bore ultimate responsibility for the
(describing the right to control as                    completion of this and all other aspects of
“ e s s e n t i a l t o t h e e m p l o ym e n t       the project pursuant to its contract with
relation[ship]”); Blessing, 228 A.2d at                Marcal.
713-14 (noting that the “sheer weight of
                                                               The two unions involved in the
authority” regarding the predominant
                                                       Marcal project – the IBEW representing
element of the special employment test “is
                                                       the electricians, and the International
undoubtedly on the side of ‘control’”). It
                                                       Association of Bridge, Structural, and
is within this statutory and precedential
                                                       Ornamental Iron Workers (“Iron Workers’
framework that we analyze whether
                                                       Union”) representing the riggers – have
Marino was a special employee of ICR at
                                                       had a written agreement in place since
the time of his injury.
                                                       1950 outlining the types of work that fall
                                                       within the jurisdiction of electricians, and
                                                       the types that are properly assigned to
                      II.
                                                       riggers, or iron workers. However, as the
        Keeping these principles in mind,              District Court noted, the work performed
we will move on to consider the factual                by electricians and riggers on a project like
setting of Marino’s work and the accident.             the one at the Marcal site can often
At the time of his injuries, Marino was a              overlap. The parties have conceded that
journeyman electrician and a member of                 the unions commonly encounter situations,
Local 363 of the International Brotherhood             often involving the moving and installation
of Electrical Workers (“IBEW”). The                    of heavy electrical equipment, in which the
accident occurred while he was employed                work at issue is not easily classified as
by KEC as an electrician who was                       falling within the exclusive jurisdiction of
assigned to work on a project at Marcal’s              either electricians or riggers.
Elmwood Park plant.           Marcal had
                                                               To deal with this kind of hybrid
contracted with KEC to perform the
                                                       situation, and to avoid costly and time-
electrical work associated with a major
                                                       consuming jurisdictional disputes, the two
construction project that would expand
                                                       unions over time developed an informal
Marcal’s facilities and add new machinery
                                                       practice of creating what they term
to its existing plant. KEC, in turn, had
                                                       “composite crews,” using an equal number

                                                   4
of workers from both unions, to work               the past, but had never before worked on
together to perform the discrete hybrid            one with ICR riggers at the Marcal site.
tasks. The parties refer to this practice as
                                                           All parties agree that Michael
the “composite crew agreement,” although
                                                   Ruane of ICR took charge, directing the
no written agreement exists, and there is
                                                   composite crew and instructing Marino
no specific understanding as to how tasks
                                                   and DiNardo about details such as where
are to be performed or which union is in
                                                   to place their hands and in which direction
charge of overseeing the tasks. Because
                                                   the team should move. The crew moved
the hoisting and moving of the switchgears
                                                   the first section of the equipment into
at the Marcal site involved both the
                                                   place without incident. The accident
movement and installation of electrical
                                                   occurred while the crew moved the second
equipment, as well as the rigging and
                                                   section of the switchgear. After hoisting
hoisting of that equipment, supervisors
                                                   the second piece up to the second floor, the
from the two companies working on the
                                                   crew disconnected the rigging and
site determined that it fell into this
                                                   positioned four metal skates beneath the
category of hybrid work. Thus, based on
                                                   switchgear so that they could roll it to its
the composite crew agreement, they
                                                   final position, where it was to be installed.
formed a group of four workers – two
                                                   As the men were rolling the switchgear
from each union – to perform the discrete
                                                   across the floor, they reached a point
task of lifting and moving the three
                                                   where the skates supporting the switchgear
switchgear sections involved. This all
                                                   stopped rolling and a skate had to be
occurred on August 7, 1998, the day of the
                                                   repositioned. At the time, DiNardo was
accident.
                                                   supporting the left side of the switchgear,
       Prior to that date, Marino had been         which was to be lifted with a jack, and
performing electrical work for KEC at the          Patrick Ruane was on the right side.
Marcal site for several weeks. On August           Michael Ruane told Marino to place a
7, Marino spent the morning performing             skate under the switchgear, halfway down
work that was typically assigned to him as         its ten-foot length, and to stand between
an electrician. Sometime before 11 a.m.,           the switchgear and a nearby wall in order
Marino’s KEC supervisor instructed him             to do so when the others raised the unit.
and another KEC electrician, Pat DiNardo,          As the crew lifted the switchgear and
to work with two ICR riggers, Michael and          Marino began to reposition the skate, the
Patrick Ruane, to move the switchgear              switchgear began to tilt. Before the men
sections to the point of installation. ICR         could stabilize it, the 4,600-pound
did not request Marino by name or                  switchgear fell over, pinning Marino
approach him specifically to ask him to            against the wall and leaving him with
work on the composite crew. Marino’s               serious and permanent injuries. At the
testimony reveals that he had worked on            time of the accident, Marino had been
composite crews moving switchgears in              working on the composite crew for


                                               5
approximately two hours.                            complaint alleged that the accident was
                                                    primarily caused by the negligence of ICR,
       During the course of the project at
                                                    in its failure to select safe methods for
the Marcal site, ICR made no contributions
                                                    moving the switchgear, and secondarily
to Marino’s wages, benefits, or payroll
                                                    caused by the negligence of Marcal, in its
taxes, nor did it pay any fee to KEC as
                                                    failure to adequately supervise ICR’s
compensation for Marino’s assistance with
                                                    conduct at the construction site. At the
this one discrete task. As we have
                                                    conclusion of pretrial discovery, ICR filed
indicated, there was no written agreement
                                                    a motion for summary judgment, 5 arguing
governing the composite crew arrangement
                                                    that, under New Jersey law, Marino was a
that was being employed at the time of the
                                                    “special employee” of ICR at the time of
accident, and the oral decision to combine
                                                    the accident, and was therefore precluded
the unions’ forces was general in nature.
                                                    by the WCA from pursuing a negligence
It did not indicate that KEC electricians
                                                    action against ICR.
became “employees” of ICR while they
served on composite crews, or vice versa,                  After hearing oral argument on the
nor did it declare that ICR supervisors and         motion, the District Court granted the
employees would have the right to control           motion and issued a written opinion on
such situations, or vice versa. Further,            August 21, 2001. In granting ICR’s
there could be no formal assignment of              motion, the District Court focused on
employees of one company to the other               Marino’s statements in interrogatories and
because each was signatory to a collective          depositions, which indicated that he knew
bargaining agreement that prohibited it             that while he served on the composite
from assigning, transferring, or subletting         crew, he would be “under the supervision,
employees to another company that did not           direction and control of [ICR].” In the
recognize the relevant union as the                 District Court’s view, these statements
collective bargaining representative of             indicated that Marino consented to being
those employees.
       Marino       received work ers ’
compensation benefits from his employer,            appellant in this opinion, but the impact of
KEC, and then instituted a personal injury          our decision here will extend to cover his
action against Marcal and ICR in the                wife’s claim as well.
United States District Court for the District              5
                                                            Marcal also filed a motion for
of New Jersey on August 24, 1999. 4 The
                                                    summary judgment, but its motion was
                                                    denied. Marcal prevailed at trial, where
                                                    the jury determined that Marcal was
       4
         Marino’s wife was also a plaintiff         negligent, but that its negligence was not
in the action, asserting a separate claim for       the proximate cause of Marino’s injuries.
loss of consortium. For ease of reference,          Thus, no issues related to the claims
we will refer to Marino as the plaintiff and        against Marcal are raised on appeal.

                                                6
loaned to ICR, thus forming an implied                   Applying this standard to the facts
employment contract. The District Court           before us, we find that no genuine issues
also found that Marino was performing “a          of material fact remain. However, as we
job that could only lie within ICR’s proper       will discuss below, an analysis of the
purview,” and that his actions were               undisputed facts under New Jersey law
directed and defined by ICR employees.            regarding special employer situations leads
Thus, although the court noted that ICR           us to reach a conclusion here that is the
did not pay Marino and that it could not          opposite of that reached by the District
hire or fire him, the District Court found        Court.
that, looking at all five factors together,
                                                                      B.
Marino should be deemed a special
employee of ICR when he was injured.                      There are essentially two types of
Marino filed this timely appeal.                  fact patterns around which the case law in
                                                  this area revolves – the “Manpower” or
                                                  employment agency cases, in which the
                   III.                           employee is almost universally held to be
                                                  a “special employee” of the business
                    A.
                                                  employer that has hired him as a temporary
        We exercise plenary review over a         helper, 6 and all other work situations in
district court’s decision to grant summary
judgment. Detz v. Greiner Indus., Inc.,
346 F.3d 109, 115 (3d Cir. 2003). Under                  6
                                                          For examples of “M anpower”
Federal Rule of Civil Procedure 56(c),
                                                  cases, see Kelly v. Geriatric & Med.
summary judgment is proper where no
                                                  Servs., Inc., 671 A.2d 631 (N.J. Super. Ct.
genuine issue of material fact exists, and
                                                  App. Div.), aff’d, 685 A.2d 943 (N.J.
where, viewing the facts in the light most
                                                  1996) (finding that a nurse working for a
favorable to the party against whom
                                                  temporary nursing services provider was a
summary judgment was entered, the
                                                  special employee of the convalescent
moving party is entitled to judgment as a
                                                  center where she was placed based on the
matter of law. Celotex Corp. v. Catrett,
                                                  satisfaction of the five-factor Blessing
477 U.S. 317, 322-23 (1986).             In
                                                  test); Antheunisse v. Tiffany & Co., 551
considering a motion for summary
                                                  A.2d 1006 (N.J. Super. Ct. App. Div.
judgment, a district court may not make
                                                  1988) (finding that a temporary worker
credibility determinations or engage in any
                                                  placed at Tiffany’s to work during the
weighing of the evidence; instead, the non-
                                                  holiday season was a special employee of
moving party’s evidence “is to be believed
                                                  Tiffany’s due to the existence of an
and all justifiable inferences are to be
                                                  implied contract for hire, the nature of the
drawn in his favor.” Anderson v. Liberty
                                                  assigned tasks, and Tiffany’s right to
Lobby, Inc., 477 U.S. 242, 255 (1986).
                                                  control the details of her work);
                                                  Chickachop v. Manpower, Inc., 201 A.2d

                                              7
which an employee is actually working on             months prior to his accident. Id. The
a job or project of someone who is not               court developed the five-factor test
technically his employer. In this latter             described above and made the following
class of cases, the way in which the                 determinations: although a benefit of the
Blessing factors are viewed to apply, given          plaintiff’s work accrued to the defendant,
the specific facts involved, will dictate the        the work was being done in furtherance of
result. As M arino’s situation clearly falls         the detective agency’s contract with the
within the latter category, it is instructive        defendant; although the defendant had
to review the key cases applying New                 incidental control over the plaintiff, the
Jersey law to this type of fact pattern as the       detective agency retained significant
first step in our analysis.                          control over most aspects of his work; no
                                                     consensual relationship or contract existed
       We begin with Blessing itself. In
                                                     between the plaintiff and the defendant;
Blessing, the plaintiff was an employee of
                                                     the plaintiff’s salary was paid by the
a detective agency who was regularly
                                                     detective agency; and the defendant had no
transferred to new locations, as directed by
                                                     power to hire or fire the plaintiff. Id. at
his primary employer, to provide security
                                                     712, 716. Thus, the court concluded that
services. 228 A.2d at 712. He was injured
                                                     the plaintiff was not a special employee of
while patrolling the defendant’s foundry,
                                                     the defendant at the time of his injury, and
where he had been working for a few
                                                     his tort action was allowed to proceed. Id.
                                                     at 718.
90 (N.J. Super. Ct. Law Div. 1964)                           Our reading of Blessing teaches us
(finding that a temporary worker                     several important lessons.         Besides
performing industrial work at a company’s            learning the specific elements of the test
steel plant was a special employee of the            for finding a special employment
borrowing company based on the                       relationship, we are instructed that “the
satisfaction of the Larson test and factors          criteria for the determination of an
similar to those listed in Blessing); see also       employee-employer relationship are not
Whitehead v. Safway Steel Prods., Inc.,              exclusive, but must be rationalized and
497 A.2d 803 (Md. 1985) (finding that a              applied so that each case may be
temporary worker placed at a company to              considered and determined upon its own
perform menial industrial work was a                 particular facts.” Id. at 715 (internal
special employee of that company based               quotation omitted). Additionally, the court
on a five-factor test that resembles the test        indicated in Blessing that “a showing of a
set out in Blessing). We will not discuss            deliberate and informed consent by the
this class of cases at length here, as we are        employee” is required before an express or
not dealing with a situation involving a             implied contract for hire will be found,
temporary placement agency and, thus, the            satisfying the first factor of the test and
analysis of the instant case will not be             weighing in favor of finding a special
derived from the “Manpower” decisions.

                                                 8
employment relationship that would bar a           provided certain services – including both
tort action. Id. at 716.                           workers and equipment – to be rented by
                                                   other organizations. Id. at 991, 994. The
        The teachings of Blessing were
                                                   court discussed the five factors listed in
echoed in subsequent decisions of the New
                                                   Blessing and found that Consolidated
Jersey Superior Court. In Santos, the
                                                   retained control over the plaintiff’s work,
plaintiff was the wife of an employee of
                                                   that the rental agreement between the
one company who was killed while
                                                   companies explicitly stated that it was not
working at a subsidiary company’s facility.
                                                   a contract for hire, that the defendant could
541 A.2d at 709. The court applied the
                                                   not hire or fire the plaintiff, that
principles discussed in Blessing to find
                                                   Consolidated continued to pay the
that a special employment relationship
                                                   plaintiff’s wages, and that the work
existed, emphasizing that the subsidiary
                                                   performed by the plaintiff was “entrusted
had the right to control the employee under
                                                   to him by the general employer
a continuing service agreement that
                                                   [Consolidated].” Id. at 993-94. Under
provided for the regular borrowing of
                                                   these facts, the Superior Court concluded
employees by the subsidiary. Id. at 711-
                                                   that there was no special employment
12. The Santos court explained that under
                                                   relationship. Id. at 994.
the Blessing test, “the actual exercise of
control is not as determinative as the right              The Murin court provided a helpful
of control itself.” Id. at 711 (quoting            explication as to the analysis to be
Smith v. E.T.L. Enters., 382 A.2d 939, 942         followed with respect to each of the
(N.J. Super. Ct. App. Div. 1978)). Also,           Blessing factors.       For instance, in
although the court gave less weight to the         describing the first factor – a contract for
factor that focuses on who paid the                hire – the court indicated that the
employee’s wages, it found that the fee            employee must consent to such a
paid by the subsidiary to the primary              contractual relationship because he “loses
employer in Santos was essentially a               certain rights along with those he gains
reimbursement for the wages and costs              when he enters a new employment
associated with the borrowed worker’s              relationship.”    Id. at 993.      Thus, a
labor. Id. at 712.                                 “showing of deliberate and informed
                                                   consent by the employee” is necessary
        A few years later, in Murin v.
                                                   before a special employment relationship
Frapaul Construction Co., 573 A.2d 989,
                                                   will be found. Id. As to the second factor
991 (N.J. Super. Ct. App. Div. 1990), the
                                                   – whose work is being performed – the
plaintiff was injured while operating a
                                                   court noted that “absent evidence to the
cement mixer truck on a construction
                                                   contrary, there is an inference that the
project. Although he was performing
                                                   em ployee remains in his gen eral
work on a project run by the defendant, he
                                                   employment so long as, by the service
was employed by Consolidated Steel and
                                                   rendered another, he is performing the
Aluminum Fence, a company that

                                               9
business entrusted to him by the general             between the two related trucking
employer.” Id.                                       companies existed, providing for the
                                                     exchange of employees between the two
       The New Jersey Superior Court had
                                                     companies, and that the plaintiff had
another occasion to engage in a special
                                                     consented to an employment relationship
employment analysis in Pacenti v.
                                                     with the second company, the court
Hoffman-La Roche, Inc., 584 A.2d 843
                                                     concluded that the Blessing test was
(N.J. Super. Ct. App. Div. 1991). There,
                                                     satisfied. Id. at 354. Regarding the fifth
the plaintiff was injured while performing
                                                     factor of the test, the court stated that “the
work for a second employer pursuant to a
                                                     right to control whether plaintiff would be
written contract providing for his primary
                                                     assigned to work for [the special
employer to supply maintenance personnel
                                                     employer] is the equivalent of the power to
to the borrowing company. Id. at 844.
                                                     discharge him.” Id.
Due to the existence of a factual dispute,
the court stopped short of reaching a                        In its only decision explicitly
decision on the special employment                   confronting this issue, the New Jersey
question.     Id. at 847.      But before            Supreme Court briefly addressed the
remanding, the court noted that several              question of whether a special employment
factors cut heavily in favor of finding a            relationship existed in Volb. Although
special employment relationship, including           much of the court’s decision focused on
the fact that the plaintiff had been under           other issues, the court did engage in a short
the control of the borrowing company and             discussion of Blessing and its application
doing its work for several years. Id. at             by the Superior Court before finding that
845-46.                                              an employee of one construction company
                                                     was the special employee of an affiliate
         The most recent guidance from the
                                                     company for which he was performing
New Jersey Superior Court on the five-
                                                     construction work. 651 A.2d at 1003-04.
factor Blessing analysis is provided in
                                                     Significantly, looking beyond actual
Gore v. Hepworth, 720 A.2d 350 (N.J.
                                                     control exercised by the special employer,
Super. Ct. App. Div. 1998). There, the
                                                     the court focused on the special
court found that an employee of one
                                                     employer’s right to control the plaintiff’s
trucking company, who was injured while
                                                     work. Id. at 1005. Also, treating the case
riding along with an employee of another
                                                     as an easy one, where the facts obviously
trucking company where the plaintiff had
                                                     indicated that a special employment
recently been employed as well, was a
                                                     relationship existed, the court did not
special employee of that second company
                                                     mention or rely upon the final two
at the time of the accident. Id. at 352. The
                                                     Blessing factors – the payment of wages,
court applied all five factors from
                                                     and the power to hire or fire. But neither
Blessing, noting that the right to control is
                                                     did the court explicitly reject those factors
the most important one. Id. at 353-54.
                                                     or indicate that they are improper
After determining that an oral agreement

                                                10
considerations in making         a   special         officer of the fire department of the
employment determination.7                           requesting service shall assume full charge
                                                     of the operations.” Id. On those facts, we
        And finally, we recently confronted
                                                     held that the plaintiff fire fighter was a
a New Jersey special employment situation
                                                     special employee of the Navy fire
ourselves in Roma v. United States, 344
                                                     department when he was injured. Id. at
F.3d 352, 354 (3d Cir. 2003), where the
                                                     363.
plaintiff was a township firefighter who
was injured while fighting a fire at a                        We analyzed three of the five
United States Naval Air Engineering                  Blessing factors as the New Jersey
Station. He was called to assist at the site         Supreme Court did in Volb, but also
of the fire pursuant to a written mutual aid         mentioned the other two arguably less
fire fighting assistance agreement between           important factors in passing. Id. at 364.
his fire department and the Navy fire                We determined that the provision giving
department associated with the station               the special employer the right to control
where the fire occurred. Id. at 355. The             the details of the work involved in joint
written agreement had been in place for              undertakings pursuant to the mutual aid
approximately twenty years and provided              agreement satisfied the most important
that each party would assist the other when          factor in the special employment test. Id.
requested, if the requested fire fighters and        Regarding the contract for hire, we noted
equipment were available, and that when              that the plaintiff conceded that he had
such assistance was called for, “the senior          voluntarily “consented to the special
                                                     employer relationship” and “submitted to
                                                     the direction of” the special employer. Id.
       7
        Following Volb, the New Jersey               Finding that the work being done was
Superior Court continues to discuss the              essentially that of the special employer, we
final two factors of the Blessing test. For          noted that the relevant question was
example, in Gore, which was decided three            “whether the work being done by the
years after Volb, the Superior Court                 plaintiff was an integral part of the regular
discussed all five of the factors that were          business of the borrowing employer, or
developed in Blessing. 720 A.2d at 353-              whether there is a functional integration of
54. Additionally, we note that in Kelly,             the respective operations of the lending
which was a “Manpower” case that was                 and borrowing employers.” Id. at 365
decided a year after Volb, the Superior              (internal quotations omitted). Both entities
Court listed and discussed all five factors          were engaged in firefighting at the same
in its special employment analysis. 671              site, thus leading to the conclusion that
A.2d at 633. The New Jersey Supreme                  their forces and operations were integrated
Court subsequently affirmed the Superior             at the time. Id. Our conclusions regarding
Court’s decision in Kelly “for the reasons           each of these prongs found clear support in
expressed in the opinion” of the Superior            the written agreement governing the
Court. 685 A.2d at 943.

                                                11
employee-borrowing situation at issue in             resemblance to a contract for hire. If
Roma.                                                anything, this agreement seems to dispel
                                                     the notion that Marino was actually
                     C.
                                                     contracted for by ICR to do this work.
        Consistent with this line of relevant        Unlike every other fact pattern in which a
decisions, the District Court and the parties        “special employment” relationship has
focus our attention on three key questions           been found to exist, there was no ongoing
under Blessing: 1) Was there a contract for          contractual arrangement for the use by ICR
hire?; 2) whose work was Marino doing?;              of Marino’s services or those of KEC
and 3) did ICR have the right to control             electricians generally. See Roma, 344
Marino’s work? The District Court found,             F.3d at 355 (describing an established
and ICR now argues, that the prominent               agreement governing situations in which
factors of the Blessing test, expressed in           one fire department would borrow
those three questions, are satisfied here for        employees from another fire department);
the reasons we have already described. On            Gore, 720 A.2d at 354 (describing an
appeal, Marino urges that none of the three          agreement by which employees of one
factors are satisfied. Regarding the first,          company would be temporarily hired by
he asserts that his brief work on the                the other company when work for either
composite crew was not sufficient to                 company declined); Pacenti, 584 A.2d at
indicate consent to an implied agreement –           844-46 (describing a contract providing for
either on the part of Marino or ICR – that           one company to supply maintenance
they would enter into a temporary                    workers to another company, along with a
employer-employee relationship. On the               five year period during which an implied
second factor, Marino contends that the              contract for hire between the plaintiff and
work being done was in furtherance of                defendant company was likely formed);
KEC’s contract with Marcal, or at the very           Santos, 541 A.2d at 709-10 (describing an
least was the work of both KEC and ICR.              “ e st a b l is h e d p r o c e d u r e ” w h e r e b y
And as to the third factor, Marino argues            employees of one company would
that despite the nominal actual supervision          regularly be assigned to work another
of the work by Michael Ruane of ICR,                 company’s plant when their own company
ICR had no right to control Marino, nor              closed for the winter). To the contrary, the
could it hire or fire him, affect his pay, or        composite crew agreement at most
dictate how and when he should do his job.           establishes a joint undertaking. It does not
                                                     include specific provisions creating a
       We find Marino’s arguments to be
                                                     procedure for one union to borrow or
very persuasive. First, with respect to the
                                                     temporarily hire workers associated with
issue of the “contract for hire,” the only
                                                     the other union for a specific purpose, as
contract here was the “composite crew
                                                     in Pacenti, nor does it form an
agreement” – a decades old informal union
                                                     understanding about such a relationship
cooperation understanding that bears no
                                                     between two parties that will be resorted to

                                                12
regularly in the future, as in Roma.               being performed and conclude that a
                                                   special employment relationship is
        Further, we find little support for
                                                   established where the employee is doing
the proposition that the “implied”
                                                   work that is more accurately characterized
agreement found to exist by the District
                                                   as work of the special employer alone, as
Court can satisfy the “contract for hire”
                                                   in the “Manpower” cases.               See
element under Blessing. See Murin, 573
                                                   Antheunisse, 551 A.2d at 1008 (finding
A.2d at 993 (emphasizing the importance
                                                   that a temporary worker’s duties were
of the consent requirement and asking
                                                   “definitely part of [the temporary
whether the employee and both employers
                                                   employer’s] regular business,” rather than
understood that the employee would
                                                   the work of the temporary agency); see
become employed by the special employer
                                                   also Murin, 573 A.2d at 993 (stating that
for a given purpose); Blessing, 228 A.2d at
                                                   “absent evidence to the contrary, there is
716 (indicating that “a showing of a
                                                   an inference that the employee remains in
deliberate and informed consent by the
                                                   his general employment so long as, by the
employee” is required before an implied
                                                   service rendered another, he is performing
contract will be found); Chickachop, 201
                                                   the business entrusted to him by the
A.2d at 95 (describing the typical
                                                   general employer”). In the situations
“Manpower” case where the employee
                                                   where no special employee relationship
knows he will be “hired out to special
                                                   was found, such as Blessing, where
employers” and he voluntarily accepts
                                                   Blessing’s work for the defendant
such employment). To find that such an
                                                   remained within the realm of his regular
implied contract exists here would seem to
                                                   detective work, this was not the case.
emasculate the contractual requirement
that the New Jersey courts have actually                   The District Court reasoned that
applied relatively strictly. The absence of        because KEC subcontracted with ICR to
an explicit contract here, along with the          have ICR perform this work, it was ICR’s
absence of any other indications that              work that was being done. But we think
Marino knowingly formed an implied                 the issue is a bit more complicated than
contract for hire with ICR when he joined          that. The work was essentially that of both
the composite crew, cuts heavily against a         KEC and ICR, in the sense that ICR was
finding that Marino was a special                  responsible for doing it under its
employee of ICR.                                   subcontract with KEC, but KEC was
                                                   ultimately responsible for this work
        Next, as to the notion that Marino
                                                   pursuant to its contract with Marcal.
was doing ICR’s work, we are not
                                                   Actually, the fact that electricians as well
convinced that this element is as easily
                                                   as riggers are routinely called upon to do
satisfied as the District Court’s decision
                                                   this type of hybrid work seems to detract
indicates. Given the case law described
                                                   from, rather than support, the existence of
above, we understand that this factor
                                                   a special employment relationship here.
requires us to look at the work actually

                                              13
The very fact that the composite crew was             Marino’s statements and the evidence
formed indicates that the task involved               related to Michael Ruane’s instructions as
presented a situation that was not clearly            the task was unfolding, we would have
the work of either riggers, or of                     difficulty concluding that ICR had a right
electricians, alone. In fact, it appears to us        to control Marino’s work as a member of
that the task was as much the work of                 the crew.8 For instance, if the KEC
electricians as it was of riggers. We think           electricians were scheduled to take a
that although M arino’s work on the                   coffee break before the crew was finished
composite crew may have rendered a                    moving the switchgear, nothing in the
service that benefitted ICR in its work on            record indicates that the ICR workers or
the project, it ultimately served a purpose           supervisors would have had any right to
that was within KEC’s responsibilities to             prevent Marino and the other KEC
Marcal under its general contract. We thus            electrician on the crew from stopping their
conclude that the work he performed                   work to take that break. In fact, there is no
should not necessarily be deemed to be the            indication in the record that ICR had the
work of ICR, and might actually be                    right to control anything with respect to
characterized as more the work of KEC –               Marino’s work on the crew, only that its
because of its ultimate responsibility for it         employees took control over details that
– than that of ICR. In any event, this                were “incidental in nature and of no
factor does not point toward the existence
of a special employment relationship as
ICR urges.                                                   8
                                                              We emphasize that, with respect to
        And finally, we view the issue of             the control analysis, this case is factually
the “right to control” to require more than           distinguishable from Roma, despite ICR’s
an examination of who assumed control                 urging that Roma dictates the outcome of
over the task of the composite crew.                  this appeal. As we noted above, Roma
Rather than looking to actual control that            involved a written agreement providing for
was exercised by the putative special                 the borrowing of fire fighters from one
employer, we have noted that the focus of             department by another. 344 F.3d at 355.
the case law is on the right to control the           Moreover, the same written agreement
employee in his work. See, e.g., Roma,                explicitly indicated that, when a joint
344 F.3d at 365 (describing the “all-                 effort was required, the borrowing
important third prong” of the test as                 department would have the right to assume
“whether [the special employer] had the               full control over the fire fighters from both
right to control” the plaintiff); Santos, 541         units. Id. Thus, the control prong of the
A.2d at 711 (citing Mahoney and                       test was easily resolved in Roma and
emphasizing that the actual exercise of               clearly cut in favor of finding a special
control “is not as determinative as the right         employment relationship. Id. at 365.
of control itself”).      Looking beyond              Here, there is no such provision in the
                                                      “composite crew agreement.”

                                                 14
particular legal significance.” Id. at 716.          from their facilities. See, e.g., Gore, 720
                                                     A.2d at 354 (finding that such power was
        Related to the “right to control”
                                                     the “equivalent of the power to discharge,”
element of the test, the final two Blessing
                                                     where the other Blessing factors were
factors, while perhaps not viewed as being
                                                     satisfied as well); Kelly, 671 A.2d at 636
as important as the first three, can
                                                     (same). The power to potentially ask KEC
nonetheless be helpful in resolving any
                                                     to have Marino removed from the
doubt that may remain in close cases. See,
                                                     composite crew is not, without satisfaction
e.g., Murin, 573 A.2d at 994 (discussing
                                                     of the other Blessing factors, sufficient to
the final two factors in a case where the
                                                     support a finding that ICR had a right to
first three factors did not clearly support a
                                                     control Marino or that a special
finding that a special employment
                                                     employment relationship existed in this
relationship existed); Blessing, 228 A.2d at
                                                     case.
713 (same). Here, both factors strongly
point toward the absence of a special                        Considering all five factors
employment relationship. Marino was                  together, as they relate to the facts before
paid by KEC for the duration of his work             us, we conclude that Marino was not a
at the M arcal site.        ICR made no              special employee of ICR at the time of his
contributions to his wages or benefits, nor          injury. We believe this conclusion to be
did it offer any payment to KEC in                   entirely consistent with the decisions of
exchange for Marino’s work on the                    New Jersey courts applying the special
composite crew.                                      employment test.       In most of those
                                                     decisions, the courts faced situations that
        Similarly, KEC retained the right to
                                                     were characterized by a degree of structure
hire or fire Marino throughout the project.
                                                     and formality – whether in the form of a
ICR had no right to select which
                                                     temporary placement agency and its
electricians were assigned to the composite
                                                     practices, or a formal contractual
crew, and it had no power to remove
                                                     relationship governing the details of the
Marino from the Marcal project. Although
                                                     parties’ relationship – that is simply
ICR asserts that it could have requested
                                                     lacking here. W hile we recognize that
that KEC replace Marino with another
                                                     cases are not required to include a
worker if his performance was deficient,
                                                     Ma npow e r ag en cy o r a w ritten
we do not think that to be equivalent to the
                                                     employment contract in order to satisfy the
power to hire or fire Marino under these
                                                     Blessing test, we are reluctant in this case
circumstances. We are not persuaded by
                                                     to impose special employer status on what
ICR’s reliance on statements made by the
                                                     appears to reflect the opposite extreme –
New Jersey courts in cases where the
                                                     an informal, custom ary opera ting
temporary employers of the plaintiffs
                                                     procedure of union laborers, combining to
retained some right to screen workers
                                                     work together on a discrete aspect of a job,
before they were placed and could also
                                                     while retaining their own employer-
unilaterally decide to remove workers

                                                15
employee relationships.                        accident, and was thus precluded from
                                               pursuing a negligence action against ICR.
        We note that care must be taken as
                                               Accordingly, we will REVERSE the
we examine any given set of facts to
                                               District Court’s order granting summary
determine whether a plaintiff falls within
                                               judgment in favor of ICR and REMAND
the WCA’s broad definition of “employee”
                                               the case to the District Court for further
– in other words, whether a special
                                               proceedings consistent with this opinion.
employment relationship exists – because
the ramifications of that determination can
be quite significant. See Murin, 573 A.2d
at 993 (applying the Blessing factors
strictly “because the employee loses
certain rights,” including the right to sue
his special employer, “when he enters a
new employment relationship”). As we
have already discussed, if such a
relationship is found, a potential source of
recovery for injury through a negligence
action could be deemed waived by the
plaintiff when he accepts workers’
compensation benefits from his primary
employer. Therefore, although the New
Jersey courts have indicated that the term
“employee” should be defined liberally in
keeping with the broad goals of the WCA,
Santos, 541 A.2d at 712, we will not
enlarge the concept of a special employer
beyond those situations that fit within the
parameters of the case law surveyed
above. Here, we do not believe that the
New Jersey courts would countenance
converting a very temporary and seemingly
routine combination of labor forces to
accomplish a discrete task into a special
employment situation.


                    IV.
       In light of the foregoing discussion,
we conclude that the District Court erred
when it determined that Marino was a
special employee of ICR at the time of the
