                        NOT FOR PUBLICATION WITHOUT THE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-3996-16T2

GEORGE WASHINGTON and
LINDA GARY-WASHINGTON,

        Plaintiffs-Appellants,

v.

RUNNELLS OPERATING, LLC,

        Defendant-Respondent,

and

CENTER MANAGEMENT GROUP, LLC,

     Defendant.
_____________________________

              Argued May 15, 2018 – Decided July 25, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No.
              L-0070-16.

              Vincent   Jesuele  argued  the  cause  for
              appellants (Kessler, Digiovanni & Jesuele,
              LLP, attorneys; Vincent Jesuele, on the
              brief).

              Judith A. Wahrenberger argued the cause for
              respondent   (Ruprecht    Hart    Weeks   &
              Ricciardulli, LLP, attorneys; Judith A.
           Wahrenberger, of counsel; Lisa B. Ramirez, on
           the brief).

PER CURIAM

     Plaintiffs      George    Washington       and   Linda   Gary-Washington1

appeal from an April 28, 2017 Law Division order dismissing their

personal injury lawsuit with prejudice, based upon the exclusivity

bar of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -146

(the Act).    For the reasons that follow, we affirm the grant of

summary judgment to defendant but remand for the entry of an

amended order to provide for the dismissal of plaintiffs' claims

without prejudice, subject to reinstatement in the event the

Division     of     Workers'       Compensation       (Division)   determines

plaintiff's claims are not compensable under the Act.

     On March 5, 2015, plaintiff, an employee of Runnells Center

for Rehabilitation and Healthcare,2 left work and drove his car to

pick up lunch at a nearby restaurant.                 On his return to work,

plaintiff's   car    struck    a    guardrail    on   a   snow-covered    access



1
   In this opinion, we refer to George Washington individually as
plaintiff, and George Washington and Linda Gary-Washington
collectively as plaintiffs. Linda Gary-Washington sues per quod.
2
   Runnells Center for Rehabilitation and Healthcare represents a
trade name utilized by defendant Runnells Operating, LLC. In this
opinion, we refer to Runnells Operating, LLC as defendant since
plaintiffs apparently abandoned their claims against the other
named defendant, Center Management Group, LLC.


                                        2                                A-3996-16T2
driveway owned by defendant.        While completing an accident report

at the scene, plaintiff exited his vehicle, slipped and fell,

sustaining a fractured ankle.

     In   April   2016,   plaintiffs      filed    suit   against    defendant

seeking compensatory damages.       Plaintiffs' Law Division complaint

alleged   that    defendant    owned,     controlled,        and   negligently

maintained "the driveway" where plaintiff's accident occurred,

causing plaintiff to slip and fall, and sustain "severe and

permanent injuries."      In its answer, defendant failed to plead the

exclusivity bar of the Act as an affirmative defense.              In February

2017, after plaintiff's deposition, defendant moved to amend its

answer to assert the exclusivity bar as a separate defense and for

summary judgment.3

     Following    oral     argument,      the     judge     initially    denied

defendant's   motions     without   prejudice.        The    judge   requested

additional information relating to the federal tax identification

numbers for defendant and Runnells Center for Rehabilitation and

Healthcare (the entity plaintiff named as his employer in                       a

workers' compensation petition he filed on February 28, 2017).


3
  Just before filing the motion, defendant's counsel contacted
plaintiffs' counsel to alert him of the proposed amendment to
defendant's answer, since the statute of limitations on
plaintiff's workers' compensation claim would run in less than a
month.   On February 28, 2017, plaintiff filed a claim petition
with the Division.

                                      3                                 A-3996-16T2
Because both entities had the same federal tax identification

number, the judge vacated his initial order and granted defendant's

motion for leave to amend its answer to assert the exclusivity bar

as a defense; in addition, the judge granted defendant's motion

for summary judgment, finding plaintiffs' claims barred by the

Act.4

                                  I

        We first address plaintiffs' argument that the motion court

"erred in granting leave to defendant to amend its answer."     Trial

courts should permit parties to amend their pleadings "freely

. . . in the interest of justice." R. 4:9-1.       A trial court's

decision to grant or deny a motion to amend under Rule 4:9-1 is

"best left to the sound discretion of the trial court in light of

the factual situation existing at the time each motion is made."

Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994) (citing

R. 4:9-1; Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J.

Super. 349, 364 (App. Div. 1989)).

        "It is [well settled] that an exercise of that discretion

will be sustained where the trial court refuses to permit new


4
   At oral argument, counsel advised that the Division has stayed
plaintiff's workers' compensation claim, pending the outcome of
this appeal. Counsel further advised that defendant's answer to
the workers' compensation petition included a separate defense
asserting that plaintiff's accident did not occur in the course
of his employment.

                                  4                           A-3996-16T2
claims . . . to be added late in the litigation and at a point at

which the rights of other parties to a modicum of expedition will

be prejudicially affected."      Du-Wel Prods., 236 N.J. Super. at

364.    Because defendant's attorney alerted plaintiffs' attorney

of the proposed amendment in time for plaintiff to file a workers'

compensation claim, plaintiffs' rights were not prejudicially

affected by the late amendment.     The motion court here reasonably

exercised its discretion in granting defendant leave to amend its

answer to assert the workers' compensation exclusivity bar as a

defense.

                                   II

       We next address plaintiffs' argument the motion court erred

in granting defendant's motion for summary judgment.           We review a

trial    court's   decision   granting    summary   judgment    de     novo,

employing the same standard used by the trial court. Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.

189, 199 (2016).     We first determine whether there are material

facts in dispute and, if not, whether the undisputed facts, viewed

most favorably to the non-moving party, entitle the moving party

to judgment as a matter of law.          Liberty Surplus Ins. Corp. v.

Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007) (citing Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).



                                   5                                 A-3996-16T2
     Having reviewed the record de novo, we conclude the record

shows no material facts in dispute, making the case ripe for

summary judgment. See Brill, 142 N.J. at 540. We further conclude

the trial judge reached the correct decision as a matter of law.

     Entitlement to workers' compensation benefits is subject to

the "premises rule" set forth in N.J.S.A. 34:15-36.           Kristiansen

v. Morgan, 153 N.J. 298, 316 (1998). The Act provides, "Employment

shall be deemed to commence when an employee arrives at the

employer's place of employment to report for work and shall

terminate   when   the   employee   leaves   the   employer's      place    of

employment,    excluding   areas    not   under    the   control    of     the

employer . . . ."    N.J.S.A. 34:15-36.

            The premises rule is based on the notion that
            an injury to an employee that happens going
            to or coming from work arises out of and in
            the course of employment if the injury takes
            place on the employer's premises.         The
            premises rule "limits recovery to injuries
            which occur on the employer's premises . . .
            by confining the term 'course of employment'
            to the physical limits of the employer's
            premises." Thus, unless one of the statutory
            exceptions not implicated here is triggered,
            an employee who is not physically on the
            employer's premises is not technically in the
            course of the employment.

            The Legislature used the phrase "excluding
            areas not under the control of the employer"
            in its definition of employment because it
            intended to include areas controlled by the
            employer within the definition. That phrase
            was intended to make clear that the premises

                                    6                                A-3996-16T2
            rule can entail more than the four walls of
            an office or plant.     The pivotal questions
            under the premises rule are (1) where was the
            situs of the accident, and (2) did the
            employer have control of the property on which
            the accident occurred.

            [Kristiansen, 153 N.J. at 316-17 (citations
            omitted) (alteration in original).]

     In Kristiansen, a New Jersey Department of Transportation

(NJDOT)   employee,    whose   job   involved   raising   and   lowering    a

drawbridge on the Victory Bridge, sustained fatal injuries when a

vehicle struck him as he walked north on the bridge to get to his

car after work.       Id. at 303-04.       The employee worked in one of

three structures located at the center of the bridge, and he parked

his car in one of several parking lots, all reachable only by

walking north on the bridge.         Ibid.   The Court held that, because

NJDOT owned the bridge, it constituted part of the employer's

premises:

            Regardless of which lot was used, the
            employees of NJDOT had to walk north on the
            bridge, and the accident occurred on the
            bridge. This case is no different than the
            case of an employee who punches out on the
            time clock at the front entrance and is
            injured while walking through the plant to
            reach his or her car parked in a rear parking
            lot.     Hence, we affirm the Appellate
            Division's holding that compensability was
            established as a matter of law.

            [Id. at 317.]



                                       7                            A-3996-16T2
       In addition to occurring on the employer's premises during

work   hours,   the   injury   must    "arise   out   of"   the   employment.

N.J.S.A. 34:15-1; Zahner v. Pathmark Stores, Inc., 321 N.J. Super.

471, 478 (App. Div. 1999).        In Zahner, we noted that "injuries

occurring on the employer's premises during a regular lunch hour

arise 'in the course of employment.'"           Id. at 479 (quoting Chen

v. Federated Dep't Stores Inc., 199 N.J. Super. 336, 338 (App.

Div. 1985)).     Because the Act constitutes humanitarian social

legislation, we construe it liberally in favor of coverage, for

the protection of employees.          Valdez v. Tri-State Furniture, 374

N.J. Super. 223, 232 (App. Div. 2005).

       Following our review of the summary judgment record, we agree

with the motion judge's legal conclusion that the exclusivity bar

of the Act applies, requiring the dismissal of plaintiffs' claims.

Defendant owned and controlled the driveway where plaintiff's

accident occurred.     Thus, it was part of the employer's premises.

The accident also occurred during plaintiff's regular lunch hour.

       When a plaintiff asserts both a workers' compensation claim

and a general negligence claim, the court may stay the latter

proceeding and transfer the matter to the Division.               Acikgoz v.

N.J. Tpk. Auth., 398 N.J. Super. 79, 82-83 (App. Div. 2008).                 In

Acikgoz, two vehicles collided on an access road owned by the New

Jersey Turnpike Authority (the Turnpike). Id. at 82. Both drivers

                                       8                              A-3996-16T2
(Acikgoz and Lowden) worked for the Turnpike; at the time of the

accident, Acikgoz had completed his shift and was going home in

his car.     Ibid.    Acikgoz sustained injuries in the accident and

filed a Law Division negligence complaint against Lowden.                Ibid.

In addition, Acikgoz filed a claim petition against the Turnpike

with   the   Division.        Ibid.    The     Turnpike   intervened   in   the

negligence action and moved to stay and transfer the litigation

to the Division.      Ibid.    The Law Division granted the transfer in

order to determine if the motor vehicle accident was compensable.

Id. at 82-83.

       A compensation judge ultimately "determined that neither

[Acikgoz] nor Lowden were in the course of their employment at the

time of the accident, that therefore N.J.S.A. 34:15-8 did not

apply, and that [Acikgoz's] accident was not compensable."                  Id.

at 83.     The compensation judge found that Lowden merely drove to

work to pick up his pay check, which does not qualify as acting

in the "course of his employment."            Ibid.   In addition, the access

road where the accident occurred was open to the public and one

of several means of ingress and egress into the workplace.                  Id.

at 89. The compensation judge reasoned that Lowden used the access

road for "convenience" rather than for the benefit of his employer.

Id. at 87.         Finally, although       the Turnpike "controlled" the

overpass,    the     compensation     judge    reasoned   that   because    the

                                       9                               A-3996-16T2
Turnpike owned the entire turnpike system, it could not conclude

that the accident occurred in the course of employment solely

because Turnpike employees were involved.    Id. at 90.   Therefore,

the Act did not bar Acikgoz's Law Division complaint asserting

general claims of negligence.   Id. at 91.

     Like Acikgoz, plaintiffs asserted both a Law Division claim

and a workers’ compensation claim.   Following Acikgoz, we vacate

the order dismissing plaintiffs' complaint with prejudice and

remand for the Law Division to enter an order of dismissal without

prejudice pending the outcome of plaintiff's workers' compensation

claim.   Barring an unforeseen development, we expect the Division

will rule plaintiff's accident occurred in the course of his

employment, making him eligible to receive workers' compensation

benefits.    Unlike Acikgoz, the access driveway here provides

ingress and egress for defendant's facility and does not serve as

a roadway for the public.   In addition, unlike Lowden, plaintiff

sustained his injury on his lunch break, while returning to work

on his employer's driveway to complete his workday.

     In any event, the application of the exclusivity bar in

N.J.S.A. 34:15-8 depends upon whether the claims are, in fact,

compensable for workers' compensation purposes.       Even where a

party can file an action with both an administrative agency and

the Law Division, where the issues require an adjudication of an

                                10                           A-3996-16T2
issue    typically   determined    by   the    administrative   agency,    the

agency has "primary jurisdiction" to which the Law Division should

defer.    Kristiansen, 153 N.J. at 314 (citations omitted).

     Therefore,      the   trial   court      should   not   have   dismissed

plaintiffs' claims with prejudice.            Rather, the court should have

dismissed plaintiffs' complaint without prejudice since there has

been no determination of compensability by the Division.                     We

therefore remand to the trial court for entry of an amended order

dismissing plaintiffs' claims without prejudice, subject to their

reinstatement in the event the Division determines plaintiff's

claims are not compensable under the Act.

     Affirmed in part, vacated and remanded in part.




                                    11                                A-3996-16T2
