In Estate of Kotsovska v. Liebman, the Appellate Division considered whether the issue of the decedent’s employment status, when raised by the Defendant in connection with its exclusivity defense, should have been determined by the Superior Court or by the Division of Workers’ Compensation.
In Kotsovska, the decedent worked for the elderly Defendant as a companion. She moved into the Defendant’s home and was paid to prepare his meals, do his chores, and provide him with other assistance as necessary. There was no discussion between the parties as to the nature of her employment. Approximately one-and-one-half months after the decedent began her employment, Defendant accidently struck her with his vehicle, causing her death.
The decedent’s Estate filed a wrongful death action against Defendant in the Superior Court. The Defendant moved to dismiss the action contending that, because decedent was his employee, the Division had exclusive jurisdiction over the action and it was barred. That motion, as well as subsequent motions filed by the Defendant to transfer the case and for summary judgment, were denied. When the case was tried before the Superior Court, the jury determined that the decedent was the Defendant’s independent contractor, not employee. As such, the Workers’ Compensation Act’s exclusivity bar did not apply, and the jury entered an award against the Defendant.
On appeal, the Defendant argued that the decedent’s employment status should have been determined by the Division. The Appellate Division agreed, holding that the action should have been transferred to this Division for this determination. The Court noted that, while the Superior Court and Division have concurrent jurisdiction to decide an exclusivity defense, the Division has primary jurisdiction when an issue has not been raised that the Division cannot decide in a binding manner.
Because the dispositive issue relative to the Defendant’s exclusivity defense was the status of the decedent’s employment, an issue over which the Division could enter a binding judgment and was best suited to decide, the Appellate Division held that the action should have been transferred to the Division. However, because the Superior Court retained concurrent jurisdiction to decide the issue, its failure to recognize the Division’s primary jurisdiction did not require reversal.
Ultimately, the Appellate Division found that the jury instructions provided by the Superior Court regarding determination of the decedent’s employment were flawed and ordered reversal on this ground alone. It preserved the jury’s verdict and remanded the action to the Division to determine the decedent’s employment status. The Division, after its ruling, was to transfer the action back to the Superior Court to either reinstate the verdict or dismiss in accordance with its opinion.
Kotsovska confirms that while the Superior Court and Division have concurrent jurisdiction to decide an exclusivity defense, the Division’s jurisdiction remains primary when it can issue a binding decision on the ultimate issue. However, the Superior Court’s failure to recognize this primary jurisdiction, standing alone, will not require reversal of a verdict entered in the Superior Court.
By Erin L. Peters, Esq.