CLAIM PETITION
NO. C.P. 98-010966

ROGER SCOTT, Petitioner,

vs.

COVENANT TRANSPORT. INC, Respondent.

DECISION ON RESPONDENT’S MOTION TO DISMISS

BEFORE:

HONORABLE ANTHONY J, MINNITTI
Judge of Compensation

APPEARANCES:

E. NKEM ODINKEMERE, ESQ.
Attorney for the Petitioner 

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
By: SHARI A. COHEN, ESQ.
Attorney for the Respondent

This is the decision under C.P. 98-010966, on Respondent’s motion to dismiss for lack of jurisdiction.

The issue presented in this motion hearing is whether New Jersey is the proper jurisdiction for Petitioner’s claim. Specifically, are there other sufficient contacts with New Jersey, other than Petitioner’s residence, to sustain jurisdiction in the state.

To determine whether or not a state’s compensation statute has jurisdiction and applicability, 6 factors are considered. They are as follows:

1) Place where the injury occurred

2) Place of making the contract

3) Place where the employment relationship exists or is carried out

4) Place where the industry is localized

5) Place where the employee resides

6) Place whose statute the parties expressly adopted by the contract.

2 Larson, Law of Workers’ Compensation, § 86.10.

Summarily, we can dismiss #1 and #6 since the accident occurred in Minnesota and there was no contract where the parties agreed on a jurisdiction to adjudicate Workers’ Compensation claims.

Furthermore, both parties are quick to concede that #5 is easily met, since there is no question that Mr. Scott is a New Jersey resident. The Respondent’s main argument is that even though Petitioner’s residence is New Jersey, residence alone is insufficient to support jurisdiction. Respondent is absolutely correct in showing that it is well settled law regarding New Jersey’s policy of denying jurisdiction when the only contact with the situs is that the Petitioner happens to be a resident of the Garden State. See e.g. Wenzel v. Zantop Air Transport, Inc., 94 N.J. Super. 326, 334 (Union County Co. 1967); Phillips v. Oneida Motor Freight, Inc., 163 N.J. Super. 297, 303-04 (App. Div. 1978).

Even though Respondent is correct in pointing out that jurisdiction cant be maintained by the residence of the petitioner, alone, Respondent ignores other relevant factors when determining jurisdiction, i.e. #2, #3, and #4. Despite the fact that Petitioner’s brief offers little guidance, when analyzing the employment relationship between Petitioner and Respondent, New Jersey does appear to be a proper situs for jurisdiction in this case.

Addressing factor #2, the place where the contract was made, there is very little case law on point which deal with the specific of facts in this case. There was no formal creation of a contract. Rather, the Respondent, a Tennessee based company, placed an ad in the Newark Star Ledger, New Jersey’s largest circulation newspaper; at which point, the Petitioner responded to the ad and obtained the job over the phone. After the phone call in which the Petitioner was offered employment, he then traveled to Tennessee for training, and then began his job of interstate trucking.

The determination of factor #2, is a crucial one, because, if an employment contract was made in New Jersey, then other factors such as the location of the accident become totally immaterial. See Gotkin v. Weinberg, 2 N.J. 305, 307 (1949); Rivera v. Green Giant Co., 93 N.J. Super. 6, 11 (App. Div. 1966). Therefore, if there is a finding that the employment contract was created in New Jersey, then this state would seem to automatically have jurisdiction to hear the Workers’ Compensation case.

The closest case with a similar factual matrix is an unpublished Appellate Division case of, Ambruster-Kelly v. Northwest Airlines, No. A-2771-97T2 (App. Div. Dec 28, 1998). Because of the similarities, Respondent substantially relies on this case in their brief. However, their reliance on this case is misplaced.

In Ambruster-Kelly, the petitioner was also a New Jersey resident, who received an offer of employment by a personal letter sent from an employer, a Minnesota company. The petitioner then accepted the offer of employment in a phone call in which she was calling from her home in New Jersey. The Appellate Division held that this single phone call was not enough to find that the contract was made in New Jersey.

However, the case at hand case differs from Ambruster-Kelly, because, in this case, the respondent placed an advertisement in New Jersey’s largest circulation newspaper, the Newark Star Ledger. They were attempting to entice qualified employees who live in New Jersey. In essence, they were attempting to tap the employment pool of this state, hence they were benefitting from the state.

In addition, consideration must be given to the long history of civil case law involving "in personam jurisdiction" and "minimum contacts". The progeny of this area of law have a history stemming from the landmark U.S. Supreme Court decisions of Pennoyer v. Neff, 95 U.S. 714 (1877) and Int’l Shoe v. Washington, 326 U.S. 310 (1945). Essentially, an out-of-state defendant can be subject to the courts of New Jersey if that defendant has sufficient minimum contacts with the state and jurisdiction does not offend the notions of fair play and substantial justice. See Lebel v. Everglades Marina, Inc., 115 N.J. 317 (1989) (where phone calls made by the out-of-state defendant were held to be enough minimum contacts to justify jurisdiction because the defendant was "purposefully availing" themselves to the state of New Jersey by creating a contract in New Jersey through the use of a telephone). Even though, the law in personam jurisdiction is not binding on Workers’ Compensation cases of jurisdiction, the framework of reasoning between the two areas of law are very similar, and should also be persuasive as well.

In the case at hand, both the classified ad and the phone call show respondent’s intent to purposefully avail themselves to the forum state, by obtaining a truck driver in New Jersey. The fact that there were only two contacts with New Jersey should not mean that it falls below the necessary minimum contacts. Rather, it shows that Respondent was simply very successful at recruiting new employees. All that was needed was one classified ad, and one phone call. As a result of these two contacts, Respondent successfully negotiated an employment contract in New Jersey, and became subsequently subject to New Jersey Workers’ Compensation jurisdiction.

Factors #3 and #4 can be combined for the purposes of this case, because Respondent operated and controlled a storage depot located in Delanco, New Jersey. This storage depot was one of the locations in which the employment relationship was maintained, and an area where Respondent’s industry was located.

Respondent makes the argument that the influence of the Delanco storage depot was minimal, at best. Respondent’s brief concedes that some of petitioner’s jobs were specifically assigned to begin and end at the Delanco storage depot because petitioner was a resident of New Jersey. However, Respondents contends that this arrangement was a "courtesy" and that they received "no benefit to the employer whatsoever" by allowing petitioner to have assignments that would begin and end in New Jersey.

It seems highly unlikely that a corporation would allow and support an employment relationship that has no economic benefit at the time. It seems more likely that Respondent’s claim of no benefits is a self-serving statement in order to show minimize the nature of Petitioner’s responsibilities at the Delanco storage depot. In any event, it is conceded that a portion of Respondent’s industry is, in fact, located in New Jersey. All that is required is that a "substantial part" of petitioner’s employment take place in New Jersey. See Parks v. Johnson Motor Lines, 156 N.J. Super. 177, 180 (App. Div. 1978).

Furthermore, if Petitioner’s status as a New Jersey resident led the company to use him specifically for jobs beginning and ending in New Jersey, then the company was benefitting from his status as a New Jersey resident.

Even if we are to adopt Respondent’s argument that Petitioner’s relationship with the Delanco storage depot was only a "courtesy"; that does not immunize them from jurisdiction. The employer’s motives are irrelevant. The language of factors #3 and #4 only speak of the place where the industry is, or the employment relationship is. The fact that the employer was being charitable or accommodating when allowing Petitioner to work out of the Delanco storage depot does not take away from the fact that New Jersey was often a location in which a substantial part of the employment relationship took place.

In light of how entangled Respondent is within the situs of New Jersey, it is clear that there are more contacts with the state other than just the Petitioner’s residence. Moreover, it is important to note that New Jersey has a strong and well settled commitment to a policy of broad and liberal interpretation of the Workers’ Compensation act so as to, "insure the accomplishment of the statutory remedial goals." Stellmah v. Hunterdon Co-op. G.L.E. Serv., Inc., 47 N.J. 163, 169 (1966) quoted in Wenzel, 94 N.J. Super. At 330. Too often, the "broad and liberal" language is easily taken for granted. However, such language is an expression of a very specific legal doctrine. This doctrine supports the inclusion of cases where the question of jurisdiction is a close one. Although, the case at hand does not look close at all. Since 4 out of 6 factors favor the Petitioner, there certainly enough factual findings in this case to support jurisdiction without resorting to the "broad and liberal" policy of interpretation. In the case at hand, jurisdiction stands on its own merits.

Respondent’s motion is denied.

The matter has been relisted to the active pre-trial list.

An order drawn in accordance with this decision is being submitted simultaneously herewith.

____________________

Anthony J. Minnitti

Judge of Compensation

November 10, 1999