                                NOT FOR PUBLICATION WITHOUT THE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-4071-17T1


ALBERTO URIBE,

           Plaintiff-Appellant,

v.

QUARTZ MASTER,

            Defendant-Respondent.


                    Argued March 6, 2019 – Decided May 2, 2019

                    Before Judges Koblitz, Currier, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-3881-16.

                    Yelena Kofman-Delgado argued the cause for appellant
                    (Vlasac & Shmaruk, LLC, attorneys; Yelena Kofman-
                    Delgado, of counsel and on the briefs).

                    John Goworek argued the cause for respondent (Law
                    Office of John P. Hendrzak, attorneys; John Goworek,
                    on the brief).

PER CURIAM
      Plaintiff Alberto Uribe appeals from the grant of summary judgment to

defendant Quartz Master.       Because the trial judge found defendant was

plaintiff's "special employer," she determined plaintiff's claim against defendant

was barred under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to

-146. After a review of the record in light of the contentions advanced on appeal

and the applicable principles of law, we affirm.

      On Target Staffing, LLC (On Target), a job placement agency, and

plaintiff executed a "Temporary Employee Work Agreement" (agreement). The

agreement provided in relevant part that 1) plaintiff would receive his paychecks

from On Target; 2) plaintiff needed to "[d]iscuss any problems or

misunderstandings at work with [an] On Target supervisor only"; 3) plaintiff

needed to "[a]lways remember [he is] NOT a staff employee of the company

where [he is] assigned and [is] not eligible for any special privileges"; and 4)

plaintiff had to "[i]mmediately notify [a] direct supervisor, and On Target, in

the event of an on-the-job injury."

      Through On Target, plaintiff began working at Quartz Master.              He

testified he reported there directly each day for more than four years, and

considered himself a permanent employee. Plaintiff worked in the warehouse




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and was trained to do multiple tasks. He stated his supervisor was the manager

of the warehouse — Vipul Patel — and Patel "always told us what to do."

      Patel testified that plaintiff worked for him in the warehouse for two years.

He trained plaintiff and provided daily instruction on the work to be done. Patel

also said if he was dissatisfied with plaintiff's work, he could tell On Target not

to send plaintiff to the warehouse anymore.

      Plaintiff instituted this suit against defendant after he was injured at

defendant's workplace while performing his job duties. Defendant moved for

summary judgment, arguing the Act barred plaintiff's tort claim "because

[defendant] was the special employer of [p]laintiff."         Plaintiff asserted in

response that On Target was plaintiff's "sole employer."

      In a well-reasoned written opinion, Judge Martha D. Lynes determined

that defendant was a special employer of plaintiff under the five-factor test first

established in Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430 (App. Div.

1967).   The judge found: 1) plaintiff had an implied contract to work for

defendant because he voluntarily accepted work assignments from defendant; 2)

plaintiff was performing work duties for defendant under defendant's "training,

directives, and supervision"; 3) Patel, defendant's agent, directed plaintiff's daily

tasks at the warehouse; 4) even though On Target paid plaintiff, New Jersey case


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                                         3
law recognizes "employees of employment agencies are paid at least indirectly

by the business . . . borrowing that worker for a temporary position," and as

such, defendant indirectly paid plaintiff; and 5) defendant had the ability to

advise On Target it did not want plaintiff at the warehouse and could request

another temporary employee. As a result of her findings, Judge Lynes concluded

defendant was a special employer under the Blessing test, and she granted

summary judgment in defendant's favor on April 10, 2018.

      We review a trial court's summary judgment disposition de novo based

upon an independent review of the motion record, applying the same standard

as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Like the trial

court, we consider whether there are any material factual disputes and, if not,

whether the facts viewed in the light most favorable to the non-moving party

would permit a decision in that party's favor on the underlying issue. See Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46–2(c).

      "When no issue of fact exists, and only a question of law remains, [we]

afford[] no special deference to the legal determinations of the trial court."

Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 415 (2016)

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).


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                                       4
      On appeal, plaintiff argues defendant was not a special employer because

1) Patel admitted during his deposition that plaintiff was not defendant's

employee; 2) plaintiff never consented to being hired by defendant, precluding

an implied employment contract; 3) the work plaintiff performed for defendant

was done to maintain On Target's business relationship with defendant ; 4) Patel

could not directly fire plaintiff and, therefore, did not exercise control over him;

and 5) plaintiff was not paid or provided any additional benefits by defendant.

      The Act provides an employee with an "exclusive remedy" against its

employer for injuries "arising out of and in the course of the employment." Gore

v. Hepworth, 316 N.J. Super. 234, 240 (App. Div. 1998); N.J.S.A. 34:15-1, -7.

In exchange for receiving workers' compensation benefits, the employee

surrenders common law tort remedies against his or her employer and co-

employees, except for intentional wrongs. N.J.S.A. 34:15-8.

      However, in a situation where an employer borrows the employee of

another entity, that employee may prevail in a common law action against the

borrowing employer depending on whether the employer is determined to be a

"special employer." Blessing, 94 N.J. Super. at 430. If the borrowing employer

is determined to be a special employer, then the employee is precluded from

bringing an action against the special employer. Id. at 429-30. A special


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employment relationship exists where "(a) [t]he employee has made a contract

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

is essentially that of the special employer; and (c) [t]he special employer has the

right to control the details of the work." Volb v. G.E. Capital Corp., 139 N.J.

110, 116 (1995).

      Subsequently, courts have considered two additional factors in

determining whether a special employment exists: "whether the special

employer [(d)] pays the lent employee's wages, and [(e)] has the power to hire,

discharge or recall the employee." Blessing, 94 N.J. Super. at 430. No one

factor is dispositive; all five are weighed to evaluate a special employment

relationship. Walrond v. Cty. of Somerset, 382 N.J. Super. 227, 236 (App. Div.

2006). Additionally, "not all five [factors] must be satisfied in order for a special

employment relationship to exist." Ibid. (quoting Marino v. Indus. Crating Co.,

358 F.3d 241, 244 (3rd Cir. 2004)). "[H]owever, it is believed that the most

significant factor is the third: whether the special employer had the right to

control the special employee." Ibid. (citing Volb, 139 N.J. at 116); see also,

e.g., Mahoney v. Nitroform Co., 20 N.J. 499, 506 (1956) (stating the right to

control is an "essential" element of the employment relationship); Gore, 316 N.J.

Super. at 241; Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 22 (App.


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                                         6
Div. 1988) (recognizing the significance of an employer's "right to exercise a

higher degree of authority" over any actual discretion exercised by an

employee).

      In considering the factors expressed in Volb, we begin with a

determination of whether plaintiff and defendant had an implied contract. An

employment contract "may be express or implied." White v. Atl. City Press, 64

N.J. 128, 133 (1973) (citations omitted). A contract for hire "does not require

formality." Gomez v. Fed. Stevedoring Co., 5 N.J. Super. 100, 103 (App. Div.

1949) (citations omitted). While assent to the offer of employment "must be

manifested in order to be legally effective, it need not be expressed in words."

Ibid. The assent can be "implied from conduct without words." Ibid. (citation

omitted). In determining whether an implied contract exists in the context of a

special employment relationship, our focus is on the relationship between

plaintiff and each of his potential employers. Pacenti v. Hoffman-La Roche,

Inc., 245 N.J. Super. 188, 193 (App. Div. 1991).

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

1988), we considered whether the plaintiff, a seasonal worker provided to the

defendant through a staffing agency, had an implied contract with the defendant.

We stated: "[The] plaintiff knew that [the personnel agency] would hire her out


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                                       7
to various employers and accepted the terms of her employment with [the]

defendant." Id. at 404. We also found the plaintiff "had the opportunity to

refuse the job without fearing any reprisal from the agency." Ibid. Therefore,

we determined the plaintiff had "impliedly contracted with [the] defendant when

she reported voluntarily to work" and "submit[ted] to [the] defendant's direction

and control." Ibid.

      Here, plaintiff voluntarily reported to defendant's warehouse for at least

two years.1 He was aware, under the agreement, that he could be hired out to

various workplaces and he could stop working for defendant at any time. 2 In

addition, both plaintiff and Patel testified that Patel was plaintiff's supervisor,

Patel instructed plaintiff on "what to do" each day at the workplace, and plaintiff

complied with those instructions. Plaintiff's actions demonstrate the existence

of an implied contract between the parties.

      Plaintiff also contests that defendant met its burden under the second

factor because the work he performed for defendant was done to maintain

defendant's relationship with On Target. This argument is without merit. As


1
  As stated above, plaintiff believed he worked at defendant's warehouse for
four years.
2
  Plaintiff did not return to work at defendant's workplace after his accident. He
testified he felt he was not "qualified" to do so.
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                                        8
we stated in Antheunisse, where the employee is doing the work that is the sole

province of the borrowing employer, the borrowing employer is considered the

employee's special employer. 229 N.J. Super. at 404-05. See also Kelly v.

Geriatric & Med. Servs. Inc., 287 N.J. Super. 567, 571-72 (App. Div. 1996)

(holding the defendant health care facility was a special employer of the plaintiff

nurse rather than her general employer, a staffing agency).

      Here, plaintiff worked in defendant's warehouse loading trucks with

marble and granite slabs. On Target was a staffing agency.            It is evident

plaintiff's work duties were in the sole province of defendant. The second Volb

factor has been met.

      The third factor of the special employment test, described as "the most

significant factor," is whether the special employer had the right to control the

special employee. Walrond, 382 N.J. Super. at 236. "[I]t is well-settled that

'[u]nder the control test, the actual exercise of control is not as determinative as

the right of control itself.'" Santos, 225 N.J. Super. at 22 (quoting Smith v.

E.T.L. Enters., 155 N.J. Super. 343, 350 (App. Div. 1978)).

      Patel was plaintiff's supervisor who trained him and provided all of his

daily work assignments. Patel was on the warehouse floor most of the day

overseeing the workers and the operations. He also had the authority to contact


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                                         9
On Target and tell them not to send plaintiff to the warehouse anymore. There

was sufficient evidence to find defendant had the right to and did control

plaintiff.

        We briefly address plaintiff's remaining arguments. It is true that plaintiff

was not on defendant's payroll. We, however, give little weight to this factor

and have stated that it "is not necessary . . . [to determine if] a special

employment relationship exists."        Kelly, 287 N.J. Super. at 577 (citations

omitted). Indirect compensation for services, as through a temporary staffing

agency, is sufficient to determine that a special employment relationship exists.

Ibid.

        We are unpersuaded by plaintiff's assertion that defendant has not

presented evidence to support the fifth factor under the required analysis. A

borrowed employer does not have to show it has the right to terminate the

employee from her position with her general employer. As we stated in Kelly,

an employer's right to screen or unilaterally remove a particular employee from

its facilities is "the functional equivalent of the power to discharge" that

employee. Ibid.

        In analyzing the special employment relationship through a consideration

of a totality of the Volb factors, with particular scrutiny given to the right to


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                                         10
control, we are satisfied Judge Lynes properly weighed the relevant factors and

determined that defendant was a special employer of plaintiff.      Therefore,

plaintiff was barred under the Act from bringing a claim against defendant and

summary judgment was properly granted.

      Affirmed.




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