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The Appellate Division has turned back an attempt by the organized plaintiffs’ lawyers’ bar to extend exemptions to the Workers’ Compensation Act to new territory. The appeals judges ruled, in Fisher v. Sears, Roebuck & Co., A-2672-01T5, that a Sears employee killed in its parking lot by armed robbers while transporting $7,000 in cash was not the victim of an intentional wrong that would allow his family to surmount the workers’ comp exemption. The appeals court drew a clear line against extending the exemption to workers employed in professions that don’t involve factories, heavy machinery and mechanical safety guards. In amicus briefs, the American Trial Lawyers Association of New Jersey had pushed for the exemption and the New Jersey Business and Industry Association had opposed it. Last Monday’s decision is noteworthy as well for being the Appellate Division’s first interpretation of the workers’ comp exemption since last May, when the state Supreme Court handed down three opinions apparently designed to re-educate an employer-friendly appellate bench. Two of the cases reversed pro-employer rulings, Crippen v. Central Jersey Concrete Pipe, 176 N.J. 397, and Mull v. Zeta 176 N.J. 385. (The other case was Tomeo v. Whitesell, 176 N.J. 366.) But the trilogy was accompanied by four concurrences and two dissents from three associate justices — a fact that both sides of the bar have taken as indicating that the battle within the Supreme Court to define the act’s exemption could be unfinished, or at least in a state of flux. “There’s a real enormity in what’s going on in these cases on multiple levels,” says Michael Marone, chairman of the defense practice group at McElroy, Deutsch & Mulvaney in Morristown, who argued amicus for the business and industry association. “We’re at the beginning of these cases, we’re at the tip of the iceberg.” The issue has steep financial consequences, since the Workers Compensation Act prevents workers from seeking jackpot verdicts through personal injury suits against employers. There is one exemption: where the employer committed an “intentional wrong” against the worker, N.J.S.A. 34:15-8. After act’s passage, the state Supreme Court defined “intentional wrong” in Millison v. E.I. du Pont de Nemours 101 N.J. 161 (1985), as any situation that met two criteria: where the employer’s acts were substantially certain to injure a worker and where the activity was so egregious the Legislature could not have intended to bring it under the act. Since Millison, most cases where plaintiffs have succeeded in threading personal injury suits through the exemption have involved industrial accidents where factory workers were crushed, mangled or suffocated by machinery, and where their employers had a lax attitude toward safety procedures at the plant. In Fisher, the plaintiffs were hoping to extend the exemption to workers outside that scenario. Aside from providing another fact pattern that could lead to financial relief under tort law, such an extension also would take into account the increasingly nonindustrial nature of modern working life, and thus capture a larger number of potential plaintiffs under its umbrella. That outcome would be a disaster for employers, as insurance companies do not provide coverage for injuries inflicted on their workers when the courts have ruled the injury “intentional.” NO CERTAINTY OF ROBBERY The Fisher case stems from a well-known murder in 1996 in Hackensack. Robert Fisher was a Teaneck police officer. He was questioned by prosecutors and the FBI in their investigation of a burglary ring that prosecutors believed was assisted by Teaneck officers. Their investigation turned up little to support their suspicions, but for a time Fisher was suspended from the department and his gun was taken away. During the suspension, Fisher started working for Sears as a security guard, transporting cash boxes among three Sears outlets in Hackensack. Sears had a safety directive that required the day’s takings be left in one of the stores overnight and transported in the morning by two guards, and that neither of the guards were to be armed. Months earlier, however, Sears had discovered that small amounts of the money were disappearing when the cash was left over night. So the store started to ignore its security policy, and asked Fisher to collect the money at night, on his own. In April of that year, he was confronted by two armed robbers and was shot to death in a struggle for the money. Fisher’s family believes he might have been loath to hand over the cash because he thought losing it would reflect badly on him in light of the Teaneck investigation. Judge Anthony Parrillo ruled Monday that the family cannot sue Sears because the case fails both prongs of the Millison “intentional wrong” test. Sears could not have been substantially certain that robbers would kill one of their guards, and such an occurrence was not outside the type of incident the act was supposed to cover, Parrillo concluded. In dicta, Parillo added, “Outside the industrial-manufacturing context . . . courts have generally been reluctant to find satisfaction of the ‘intentional wrong’ standard.” Citing failed cases featuring nonfactory incidents, Parrillo continued, “[E]ach lacked the ‘exclusive control’ element inherent in the use of industrial production machinery.” “We believe that’s too much of a bright-line distinction,” says Michael Galpern, a partner with the Locks Law Firm in Cherry Hill, who argued amicus for ATLA. The Fisher family’s lawyer, Paul Faugno of Rogan & Faugno in Hackensack, sees a straightforward analogy between his case and those of workers injured by machines: Sears employed guards presumably because it knew the stores might be robbed, ergo, there was a substantial certainty of robbery. “Sears implemented a safety procedure and then knowingly violated the safety procedure they created . . . like a removal of safety guard [on a machine],” Faugno says. He and Galpern are hopeful the Supreme Court — which has been more generous in its definition of the exemption and has at least two justices, James Zazzali and Barry Albin, who disagree with the current criteria — will agree to hear their appeal. That possibility is taken seriously by business defense lawyer Marone, who argued amicus for the business and industry association. “The Supreme Court — while they cite Millison, they quote from it, and use it as a foundation on which all of these cases rest — in my opinion they’ve strayed from it,” he says. “There might be split in viewpoints in the Supreme Court.” Marone and counsel for Sears, partner Edward Fanning Jr. of Newark’s McCarter & English, feel the courts are forgetting the original point of the act: to reward workers automatically, albeit more modestly, for their injuries — not to reward them in addition to whatever they can get from a tort action. Fanning sees a particular danger in extending the exemption to cover the Fisher scenario: It would make employers liable for the acts of criminals whom they obviously cannot control. “Sears lacked exclusive control over the instrumentality of the harm. This was caused by the unforeseeable third actor,” he says.

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