Opinion
Argued November 30, 1998.
Decided December 8, 1998.
Appeal from the Superior Court, Atlantic County, Chancery Division, Gibson J.S.C., Paul G. Levy, J.A.D.
Before Judges HAVEY, SKILLMAN and PAUl G. LEVY.
Mark G. Schwartz, argued the cause for appellants (Westmoreland, Vesper Schwartz, attorneys; Mr. Schwartz and Katherine M Morris; on the brief).
Robert J. Kelly, argued the cause for respondent New Jersey Re-Insurance Company (McElroy, Deutsch Mulvaney, attorneys; Mr. Kelly and John T. Coyne, on the brief).
Jonathan M. Kuller, argued the cause for respondents Aetna Life Casualty, The Travelers Insurance Company and Employers Insurance of Wausau (L'Abbate, Balkan, Colvita Contini, attorneys; Mr. Kuller, on the brief).
James E. Patterson, argued the cause for amicus curiae. New Jersey Association of Realtors (Greenbaum, Rose, Smith, Ravin, Davis Himmel, attorneys; Mr. Patterson, on the brief).
Respondent, Pennsylvania National Insurance Company did not file a brief.
Judge Gibson held that plaintiffs Were liable for payment of premiums for workers compensation insurance coverage benefitting its real estate sales agents. Re/Max of New Jersey, Inc. v. Wausau Ins. Cos., 304 N.J. Super. 59 , 697 A.2d 977 (Ch.Div. 1997). He applied the "relative nature of the work" test, as explained in Kertesz v. Korsh, 296 N.J. Super. 146 , 154, 686 A.2d 368 (App.Div. 1996), and held that the Re/Max agents are economically dependent on the Re/Max broker, lacking "the ability to act independently." In the course of his opinion, Judge Gibson clearly demonstrated the economic and functional dependence of the sales agents on Re/Max, "mak[ing] any further claim of independence difficult to sustain." Re/Max, supra, 304 N.J. Super. at 68-69, 697 A.2d 977. We affirm for the reasons stated therein.
In doing so, we reject plaintiffs contention that the sales agents are independent contractors pursuant to the dictates of MacDougall v. Weichert, 144 N.J. 380 , 677 A.2d 162 (1996). MacDougall was not concerned with workers compensation issues; instead it dealt with a real estate agent's claim for wrongful discharge under Pierce v. Ortho Pharm. Corp., 84 N.J. 58 , 417 A.2d 505 (1980). In MacDougall, Justice Handler analyzed the differences between an employee and an independent contractor in terms of control. There was no reliance on the "relative nature of the work test" under either Kertesz v. Korsh, supra, 296 N.J. Super. at 154, 686 A.2d 368, or Marcus v. Eastern Agric. Ass'n, Inc., 58 N.J. Super. 584 , 603, 157 A.2d 3 (App.Div. 1959) (Conford, J.A.D., dissenting); rev'd on dissent 32 N.J. 460, 161 A.2d 247 (1960). We deem these two cases more appropriate than MacDougall in resolving the issue presented here.
Affirmed.