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Wednesday, September 9, 2015

ESTATE OF JACK D'AVILA BY TIAGO D'AVILA, ADMINISTRATOR AD PROSEQUENDUM AND DENISE ROCHA, INDIVIDUALLY VS. HUGO NEU SCHNITZER EAST, ET AL. A-4439-11T2/4705-11T2/

ESTATE OF JACK D'AVILA BY TIAGO D'AVILA, ADMINISTRATOR AD PROSEQUENDUM AND DENISE ROCHA, INDIVIDUALLY VS. HUGO NEU SCHNITZER EAST, ET AL. 
A-4439-11T2/4705-11T2/4713-11T2 (CONSOLIDATED) 
These consolidated appeals arise out of a four-month jury trial in a wrongful death case against multiple defendants, 
including a general contractor, brought by the estate of a subcontractor's worker. The worker became paralyzed after being struck in the head by an unsecured metal ladder on a construction site. The worker was then given inadequate medical care at a nearby hospital, and he died three years later. 
In the published portion of this opinion, we hold that the trial court properly allowed the injured worker's employer to participate in the negligence trial. Such participation was appropriate to resolve the employer's fact-dependent contractual duty to indemnify the general contractor and did not violate the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8. 
We distinguish Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 134 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996) (disapproving the employer's participation at trial). Instead, we approve using, in this unusually complex and expansive case, the unitary trial approach endorsed in White v. Newark Morning Star Ledger, 245 N.J. Super. 606 (Law Div. 1990). 
The trial court did err in not permitting the jury to ascertain the employer's percentage of fault, if any, on the verdict form. However, given appellant's failure to object below and the broad scope and protracted length of the trial, that omission does not require a retrial of this entire case. Instead, we order only a limited remand to sort out any lingering indemnification issues.