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Appellate Division Holds Truck Driver Sleeping On Dana Transport Property Was An Employee And Cannot Sue Dana Transport In Civil Action

By on July 8, 2011 in Key Defenses with 0 Comments

The independent contractor defense in New Jersey is not generally a strong defense, but it can be sometimes advantageous to employers to invoke it when they are sued civilly.  The case of Fugatt v. Dennison Graine and Dana Transport, Inc., A-5353-09T3 (App. Div. July 5, 2011) presents a fascinating situation where the injured worker did not want to pursue his workers’ compensation rights but respondent conversely desired the workers’ compensation protection to invoke the exclusive remedy provision.

The facts are simple.  Michael Fugatt was a long-time truck driver who began working for Dana Transport in 2006.  He leased his 1998 Volvo truck to Dana and painted it a particular shade of green per company request.  He used it exclusively for Dana.

On January 10, 2007, Fugatt parked on the grounds of Dana in Avenel, New Jersey and went to sleep in the berth of his Volvo.  He had driven to the lot two hours earlier in order to sleep in compliance with federal regulations prior to trucking a load of goods.  In his deposition in the civil case, he testified that he had a loaded Dana trailer attached to the Volvo for delivery in Springfield, Massachusetts later that morning.

Meanwhile, co-defendant Graine (an employee of Dana Transport) was dropping off a tanker at Dana when his truck backed into Fugatt’s Volvo.  The accident led to serious injuries, and Fugatt was diagnosed with a herniated disc.

Dana completed an OSHA form 301 Injury and Illness Report listing Fugatt as an employee who was injured and stating that he was “under dispatch” at the time of the accident.  It submitted the paperwork to AIG, its workers’ compensation carrier.  Dana and AIG listed Fugatt as an employee for purposes of state and insurance requirements.

Fugatt through his counsel filed a claim petition in the Division of Workers’ Compensation.  However, Fugatt denied in his deposition any knowledge of filing this claim petition.  Instead, he sued Graine and Dana Transport in a civil action.   Dana Transport later filed a motion for summary judgment and contended that plaintiff could not maintain a civil action against his employer, nor against his co-employee.  The civil judge ruled for Dana Transport and Fugatt appealed.

The issue on appeal was simply whether the injury in this case arose from the employment even though Fugatt was asleep at the time of the injury.  The Appellate Division held, “The fact that an employee was ‘off the clock’ at the time of an accident does not automatically preclude compensability under the Act because ‘situs of the accident is a dispositive factor.’”  The Court pointed out that Fugatt was in the course of his employment in this situation even though he was sleeping and was not performing active work duties.

The Appellate Division took a larger view of the situation in this case. “[p]laintiff was paid for each load he transported and was required by the Federal Motor Carrier Safety Regulations for commercial drivers to sleep prior to driving this load from New Jersey to Massachusetts. . . The load destined for Massachusetts was hooked up to his Volvo tractor, and he was sleeping in the sleeping berth of the tractor on Dana’s property when the accident occurred.”   It found that his “duties as a truck driver are what led [him] to be sleeping in his tractor where and when the accident occurred.”

Based on this ruling, plaintiff’s suit against his co-employee and against his employer was barred by the exclusive remedy provision.  In the end, the only remedy which Mr. Fugatt had was in the Division of Workers’ Compensation, which was a remedy that the company favored but the plaintiff did not desire.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Hamilton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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