MATTHEW A. SCHIAPPA: YES. CHIEF JUSTICE, ASSOCIATE
JUSTICE, JUDGE SABATINO, COUNSEL, MAY IT PLEASE THE COURT. MYSELF AND MY.
I HAVE THREE MAIN TOPICS. THE FIRST WAS THE CERTIFIED QUESTION
AS TO WHETHER OR NOT THE BORROWED SERVANT DOCTRINE WAS A QUESTION OF LAW OR
QUESTION OF FACT. I OBVIOUSLY BASED ON THE ARGUMENT OF COUNSEL WOULD LIKE TO
ADDRESS WHAT THE SPECIFIC AGREEMENT WAS ON THE RECORD AT THE TRIAL LEVEL AND THEN
OBVIOUSLY THAT ORAL ARGUMENT HAD TRANSPIRED INTO WHAT WAS THE SECOND
QUESTION, WHICH THIS COURT SPECIFICALLY SAID THAT THEY WEREN'T GOING TO TAKE. THERE
WAS AN ARGUMENT OF APPLYING GALVAO TO THE SPECIFIC FACTS ON THE MATTER BUT
I BELIEVE JUSTICE -- CLEARLY EVIDENCE THAT THE APPELLATE DIVISION WAS CORRECT THAT
THE PLAINTIFF DID NOT GET THE INFERENCE TO SAY WHICH THEY WERE ENTITLED
TO AT THE TRIAL LEVEL. BEGINNING VERY SIMPLY WITH WHETHER THIS IS
A QUESTION OF LAW OR FACT, BORROWED SERVANT DOCTRINE IS LIKE ANY OTHER EMPLOYER
EMPLOYEE RELATIONSHIP. IT'S QUESTION OF FACT. WE WENT THROUGH IN OUR SUPPLEMENTAL
BRIEFING A BRIEF HISTORY OF THE CONTROL TEST, THE BUSINESS FURTHERANCE TEST
AND STARTED FROM THE MACRO POSITION CITING I BELIEVE IT WAS SAR VASE VS. AA PURSUE
SECOND WHICH SHOWS LONG-STANDING NEW JERSEY JURISPRUDENCE STATING
DETERMINATIONS OF VICARIOUS LIABILITY OF QUESTION OF FACT FOR THE JURY TO DECIDE.
OBVIOUSLY UNDER OUR SUMMARY JUDGMENT STANDARD, MOTION FOR DIRECTED VERDICT,
MOTION FOR JUDGMENT WHICH ARE ALL ESSENTIALLY THE SAME STANDARD. IF IT'S SO
ONE DECIDED IT CAN BE DECIDED AS A MATTER OF LAW. SO ANSWERING THIS COURT'S
QUESTION AS TO THE BORROWED SERVANT ISSUE IT WAS A QUESTION OF FACT. THE MODEL
JURY CHARGE IS NOW BROUGHT UP; CLEARLY GIVES ALL THE FACTORS AS TO WHAT
A JURY HAS TO CONSIDER. AGAIN, AND THERE'S ANNOTATIONS WHICH CASE LAW WHICH WE
CITED. AGAIN SAYING IT'S A A QUESTION OF FACT. THE AMBIGUITY IN THIS CASE
CAME BECAUSE IN GALVAO THEY DIDN'T -- THE COURT DIDN'T SAY ONE WAY OR THE OTHER.
IT WAS A VERY UNUSUAL PROCEDURAL CASE. THAT HAPPENED TO BE ONE WITNESS
THAT THE JUDGE TOOK TESTIMONY FROM TO DECIDE THE SUMMARY JUDGMENT MISAPPROPRIATION
AND I THINK THAT SORT OF INFLUENCED COUNSEL AT THE BEGINNING OF THE CASE
BUT THE REALITY WAS AND WE CITED TO THE TRANSCRIPT. BOTH AT THE APPELLANT
LEVEL AND IN OUR INITIAL OPPOSITION TO THE CERTIFICATION IN THE SUPPLEMENTAL
BRIEFING THAT AT TIMES BOTH SIDES WERE CALLING IT A LEGAL QUESTION, BOTH SIDES WERE
THEN SAYING IT COULD BE DECIDED AS A MATTER OF LAW. AND ULTIMATELY AT TWO
CRITICAL TIMES WHICH ARE CERTAINLY CITED IN OUR BRIEF, OUR SUPPLEMENTAL BRIEF, I
BELIEVE IT'S TRANSCRIPT SIX, AT PAGED 104, PLAINTIFF HAD RESTED AND COUNSEL WAS
ABOUT TO MAKE A MOTION UNDER RULE FOUR INFERENCE. WHICH HAS THE SAME
STANDARD AS A 440 MOTION AND THEY DECIDED THEY WANT TO PUT ON MORE EVIDENCE ON T
HE BORROWED SERVANT DOCTRINE ISSUE AND IT WOULD ONLY MOVE ONCE UNDER THE
CASE UNDER THE 440 STANDARD. THAT'S NOT PLAINTIFF'S COUNSEL SAYING THAT'S DEFENSE
COUNSEL STATE WLAG THEY'RE GOING TO DO. CLEARLY NOWHERE IN THE TRANSCRIPT
DID EITHER SIDE SAY THIS WAS A BENCH TRIAL. THE AGREEMENT WAS SPECIFIC. IT WAS
EXPLICIT AND AS I BRIEFED HERE THAT THE MOTION WAS GOING TO BE MADE UNDER 440.
NORMALLY THAT GAVE THE PLAINTIFF CERTAIN ADVANTAGES AS THE APPELLATE DIVISION
POINTED OUT. THAT WAS OUR REASONING FOR NOT LETTING THIS QUESTION GO TO THE
JURY. QUITE FRANKLY, IT IS A COMPLICATED QUESTION. WE FRIED TO GIVE AN EXAMPLE
IN OUR BRIEFING OF EVERY DAY JURORS HAVE TO MAKE DECISIONS. THIS WASN'T A REAR
END MOTOR VEHICLE HIT WHERE PEOPLE MIGHT HAVE SOME KNOWLEDGEABLE DRIVING
CARS AND THINGS OF THAT NATURAL. THEY HAVE TO SIT DOWN AND WEIGH ALL THESE FACTORS,
PLUS THEY DIDN'T HAVE TO GIVE ME, THEY DIDN'T HAVE TO ACCEPT ALL MY EVIDENCE
AS TRUE, THE JURY. THEY DIDN'T HAVE TO GIVE ME EVERY REASONABLE INFERENCE. WHY
WOULDN'T THE PLAINTIFF HAVE WANTED THIS MOTION, THIS ISSUE TO BE DECIDED
UNDER THE 440 STANDARD? TO SAY THAT PLAINTIFF NEVER RAISED THAT ISSUE AT THE TRIAL
LEVEL OR THE APPELLANT LEVEL IS ALSO INCORRECT. THE TRIAL COURT REQUESTED
AFTER THIS TRIAL HE SAID 440 GIVES ME SOME LEEWAY. IT'S REALLY A SHORT PESHD OF
TIME. BUT I'LL TAKE MORE. I'M GOING TO RESERVE ON THE DECISION. AND
SIGNIFICANT POST TRIAL BRIEFING. JUSTICE PATTERSON: YOU THOUGHT IT WAS
STRATEGICALLY IN YOUR CLIENT'S FAVOR TO TAKE THIS ISSUE FROM THE JURY AND
HAVE THE JUDGE CONSIDER ON A 440 STANDARD WHICH IS VERY MUCH PRO PLAINTIFF. AND
I THINK WE'RE HEARING YOU LOUD AND CLEAR THAT THAT WAS WRONG, THAT THIS
SHOULD HAVE GONE TO THE JURY. MATTHEW A. SCHIAPPA: I'M NOT SAYING
THAT IT WAS WRONG. THAT WAS THE AGREEMENT. JUSTICE
PATTERSON: BUT YOU'RE SAYING THIS IS A JURY ISSUE. MATTHEW A.
SCHIAPPA: YES. YOU CAN'T READ THE CASE LAW AND SAY THAT -- I KNOW THE SUPREME COURT
BACK IN 2004 DIDN'T SAY OH WE'RE RULING AS A MATTER OF LAW, WHICH WHO INDICATE
TO YOU IT WAS A QUESTION OF FACT. JUSTICE PATTERSON: I KNOW
YOU'RE ARGUMENT. I'M SIMPLY ASKING YOU TO CONFIRM THAT YOU ARE HERE ARGUING
THAT THE APPROPRIATE FACTFINDER WITH RESPECT TO THIS ISSUE IS A JURY.
MATTHEW A. SCHIAPPA: CORRECT. JUSTICE PATTERSON: SO HERE'S MY
PROBLEM WITH WHAT THE APPELLATE DIVISION DID. TELL ME WHAT I'M MISSING
HERE. YOU ARE SAYING ONLY A JURY CAN DECIDE THIS ISSUE, RIGHT?
MATTHEW A. SCHIAPPA: THAT'S NOT NECESSARILY TRUE. OBVIOUSLY IF THE FACTS ARE
SO ONE-SIDED WHICH TO BE HONEST WITH YOU -- JUSTICE PATTERSON:
DO YOU -- BARRING SUMMARY JUDGMENT, OKAY. THERE ARE ISSUES THAT CAN BE TAKEN
AWAY FROM THE FACTFINDER BECAUSE AS A MATTER OF LAW THERE'S ONLY ONE -- THE FACTS
ALL GO IN ONE DIRECTION. YOU ARE SAYING THAT IF THERE ARE FACTS GOING IN
BOTH DIRECTIONS THIS -- THIS MUST GO TO THE JURY AS A MATTER OF LEGAL PRINCIPLES
THAT YOU WANT THIS COURT TO ARTICULATE IN THIS CASE. MATTHEW A.
SCHIAPPA: YES. THE CERTIFIED QUESTION -- BUT THAT'S NOT WHAT THE AGREEMENT WAS.
JUSTICE PATTERSON: BUT IT'S AN ELEMENT OF YOUR BURDEN OF PROOF
IN THIS CASE, RIGHT? THAT -- IT'S AN ELEMENT IN ORDER TO GET TO THE VICARIOUS
LIABILITY YOU HAVE TO WIN ON THAT ISSUE. MATTHEW A. SCHIAPPA:
YES. YOU WOULD HAVE TO PROVE THAT THE EMPLOYER MT HAD AT LEAST SOME TYPE OF
CONTROL AND SOME TYPE OF ECONOMIC BENEFIT FROM IT AND AS I HAD POINTED OUT IN THE
BRIEFING IN GALVAO SPECIFICALLY SAYS IT CAN BE DUAL. JUSTICE
PATTERSON: SOME ISSUES WERE SUBMITTED TO THE JURY BUT THAT WAS NOT ONE OF THEM.
MATTHEW A. SCHIAPPA: CORRECT. JUSTICE PATTERSON:
SO UNDER YOUR FORMULATION WHICH DOES THAT A JURY QUESTION, THE PROPER FACTFINDER
NEVER DECIDED THAT? MATTHEW A. SCHIAPPA: CORRECT.
JUSTICE PATTERSON: HOW WOULD THE APPELLATE DIVISION REINSTATE YOUR VERDICT WHEN
-- REINSTATE THE VERDICT GIVE THE FACT THAT NO JURY HAD DETERMINED THAT?
MATTHEW A. SCHIAPPA: BECAUSE THAT'S WHAT THE PARTIES AGREED TO, JUSTICE
PATTERSON. WHEN COUNSEL MADE THE MOTION HE ACKNOWLEDGED I HAVE THE HEAVY BURDEN.
AND TO SAY THAT IT WAS JOINTLY -- WE WOULD SAY JOINTLY YES, JUDGE WE'D LIKE TO
DECIDE R DECIDE THIS ISSUE. JUSTICE PATTERSON: WHY SHOULDN'T
THIS GO BACK SO A JURY DETERMINES THAT ISSUE? MATTHEW A.
SCHIAPPA: BECAUSE THAT'S THE AGREEMENT THAT WAS MADE. THEY WERE REPRESENTED --
JUSTICE PATTERSON: WHERE DOES IT SAY THAT ABOUT A FINAL REMEDY
IN THE CASE IF IT TURNS OUT YOU WERE WRONG? ARE YOU'RE SAYING IF WHAT YOU ARE
SAYING IS WE AGREED TO, THEREFORE, NO JURY SHOULD DECIDE THIS ISSUE, THEN
THE TRIAL COURT -- THE TRIAL DETERMINATION SHOULD NOT HAVE BEEN -- SHOULD NOT BE
REVERSED ON APPEAL. MATTHEW A. SCHIAPPA: YES BUT I WOULDN'T
HAVE AGREED TO A BENCH TRIAL ON THE ISSUE -- AGREE TO THAT BECAUSE ULTIMATELY.
JUSTICE PATTERSON: YOU WOULD HAVE HAD THE BURDEN OF PROOF.
MATTHEW A. SCHIAPPA: RIGHT. AND THE WAY THE AGREEMENT WAS
IS THAT WHY WOULDN'T I TAKE THAT, RIGHT? YOU KNOW I WAS UP FRONT WITH THIS COURT
WHY WOULDN'T I TAKE THAT ADVANTAGE. IF HE LOSES THE 440 MOTION WE'RE JUST
GOING TO TELL THE JURY, YOU KNOW, YOU DECIDE IF GIAMELLA WAS --
JUSTICE PATTERSON: YOU'RE LOOKING TO GET THE BENEFIT OF YOUR AGREEMENT TO SOME
DEGREE BECAUSE YOU VIEW IT AS A STRATEGIC AGREEMENT BUT YOU WANT IT UNDONE
IN OTHER RESPECTS BECAUSE YOU THINK IT ULTIMATELY GAVE THE WRONG FACTFINDER THE
RESPONSIBILITY OF DETERMINING THE BORROWED SERVANT QUESTION.
MATTHEW A. SCHIAPPA: MY DISTINCTION TO THAT WAS THE AGREEMENT WAS THE DEFENSE IS
GOING TO MAKE THEIR MOTION BUT IT'S GOING TO BE UNDER THE 440 STANDARD.
IF THEY WIN IT, WE'RE DONE, PLAINTIFF LOSES. IF WE DEFEAT THAT WE ARE THEN JUST
GOING TO HAVE THE JURY DECIDE THE CASE AS IF MT IS VICARIOUSLY LIABLE,
UNDERSTANDING THE QUESTION IS LEFT OPEN. I'M NOT ASKING ANYONE TO UNDO ANYTHING. THAT
WAS THE AGREEMENT MADE. JUSTICE PATTERSON: BUT WHAT I'M SAYING
IS IF THIS WAS SENT BACK FOR A REINSTATEMENT OF THE JURY VERDICT THEN
WHAT YOU ARE SAYING SHOULD HAVE HAPPENED HAS NEVER HAPPENED. AND THAT IS A JURY
DECIDING ON THIS QUESTION OF FACT. AND I'M SAYING -- I KNOW YOU'RE A GOOD
LAWYER, YOU'RE TRYING TO GET THE BEST STRATEGY AND PULL OUT OF THIS REALLY ODD PROCEDURAL
SITUATION THE ADVANTAGES TO YOUR CLIENT. BUT THE QUESTION IS HERE IF YOU ARE
TELLING US AND IF YOU WE DECIDE YOU ARE RIGHT THAT THIS IS A QUESTION OF FACT THAT
NEEDS TO GO TO A JURY, IT NEEDS TO GO TO A JURY, DOESN'T IT?
MATTHEW A. SCHIAPPA: THAT WAS IN A FORM OF PARTIAL SETTLEMENT, HIGH, LOW, AGREEMENT.
JUSTICE PATTERSON: WAIT A SECOND. USE NOW WANTING TO GET OUT OF
FROM UNDER GIVING THE COURT THE DETERMINATION TO BELIEVE MADE AS A MATTER OF
LAW. YOU WANT OUT FROM UNDER THAT. MATTHEW A. SCHIAPPA: NO,
YOUR HONOR. I'M NOT. BECAUSE THAT APPLICATION. JUSTICE
PATTERSON: YOU'RE TELLING US IT WAS AN ERROR FOR A COURT TO MAKE THAT DETERMINATION.
MATTHEW A. SCHIAPPA: JUDGE ON THE CRITICAL DAY, IT WAS DECEMBER
10TH, THAT'S TRANSCRIPT NUMBER SEVEN AND IT SAYS MR. MINTER BOTH I THINK BOTH SIDES
SAID THIS IS ME SPEAKING. PAGE 9, LINE 16. THIS IS WHEN THE TRIAL COURT
WAS LIKE CAN WE STOP FOR A SECOND BECAUSE THE TRIAL COURT CLEARLY THOUGHT IT WAS
A QUESTION OF FACT. MAYBE WE SHOULD TURN THE SHIP AROUND I THINK HE SAID.
I THINK BOTH MR. MINTER AND I, MY CO-COUNSEL AND MR. LIMBO WE JUST HAD SIX DAYS
OF TRIAL PLEASE DON'T DO THAT TO US. AND I CLEARLY SAID ON THE RECORD,
ON THE NEXT TWO PAGES, JUDGE, I DON'T KNOW IF IT'S A QUESTION OF LAW OR A QUESTION OF
FACT. YOU COULD DECIDE IT UNDER THE 440 MOTION AND I'M LOCKED INTO THAT
PROCEDURE. YOU BELIEVE THE 440 STANDARD. JUSTICE SOLOMON: DID THE
JUDGE AFTER Z EVER DECIDE THE 440 MOTION? MATTHEW A. SCHIAPPA:
HE DID. JUSTICE SOLOMON: HOW. MATTHEW A.
SCHIAPPA: AGAINST THE PLAINTIFF. HE DIDN'T DO IT UNDER THE 440 STANDARD.
JUSTICE SOLOMON: SO WAS THE ERROR THAT THE APPELLATE DIVISION FOUND
OR SHOULD HAVE FOUND THAT HE FAILED TO APPLY THE 440 STANDARD CORRECTLY.
MATTHEW A. SCHIAPPA: YES. I BELIEVE THE APPELLATE DIVISION WAS VERY CLEAR
ON THAT. THAT THE TRIAL COURT DID NOT APPLY THE 440 STANDARD CORRECTLY.
JUSTICE SOLOMON: IF THAT'S THE CASE THEN YOUR ARGUMENT IS NO JURY, NO
TRIER OF FACT HAS TO FIND BORROWED SERVANT DOCTRINE, I WIN BECAUSE THAT WAS OUR
AGREEMENT. MATTHEW A. SCHIAPPA: CORRECT. IT'S JUST LIKE
IF YOU HAD A HIGH LOW AGREEMENT OR ANY OTHER PARTIAL SETTLEMENT AGREEMENT HOW A
CASE WAS GOING TO BE TRIED. THEY KNOWINGLY WENT INTO THAT. COUNSEL STARTED
HIS ARGUMENT KNOW ENGAGE HE HAD A HEAVY BURDEN TO WIN THAT MOTION AND I CITED
THAT FOR THIS COURT AND I CITED IT FOR THE APPELLATE DIVISION. THEY DIDN'T UNKNOWINGLY
WALK INTO THAT. JUSTICE PATTERSON: PART OF YOUR AGREEMENT
WAS THAT THIS WHOLE ISSUE GOES TO THE JUDGE AND YOU'RE NOW TELLING US THAT
WAS WRONG. MATTHEW A. SCHIAPPA: . NO YOU BELIEVE THE 440
STANDARD. JUSTICE PATTERSON: IF THIS IS AN ISSUE COUNSEL THAT
IS PROPERLY FOR A JURY AND YOU ARE ARGZING THAT, WHAT AM I MISSING HERE? IN THIS CASE
YOU ARE SAYING THIS GOES TO A JURY, RIGHT? MATTHEW A. SCHIAPPA:
CORRECT. JUSTICE PATTERSON: SO IF YOU'RE RIGHT, THEN WHAT
WENT ON IN THE TRIAL COURT WAS WRONG, SHOULD NEVER HAVE HAPPENED.
MATTHEW A. SCHIAPPA: I HAVE TO RESPECTFULLY DISAGREE WITH THAT JUSTICE
PATTERSON. IT IS AGREEMENT THAT WAS FIRST PROMPTED BY DEFENSE COUNSEL.
WE'LL HAVE THE JUDGE DECIDE IT ON A MOTION FOR JUDGMENT AT THE END OF THE CASE.
JUSTICE PATTERSON: SO UNDER THE RULE THAT YOU WOULD HAVE THIS
COURT ADOPT IF SOMEBODY TRIES TO DO WHAT YOU AND YOUR CO-COUNSEL DID IN THAT CASE
AND TELL THE TRIAL COURT WE DON'T KNOW, WE THINK IT'S FOR YOU, YOUR HONOR,
YOU WOULD BE HAVING THIS COURT SAY THAT WOULD BE WRONG. IT'S AN ISSUE THAT OUGHT
TO GO TO THE JURY, RIGHT? MATTHEW A. SCHIAPPA: IT'S AN ISSUE
THAT OUGHT TO GO TO THE JURY. JUDGE SABATINO: UNLESS WAIVED,
RIGHT? IN OTHER WORDS IF YOU EVER A RIGHT TO A JURY TRIAL, AT TIMES PEOPLE
WAIVE IT. THEY CHOOSE NOT TO TAKE ADVANTAGE OF THAT JURY TRIAL. SO IT ISN'T
ONE INTERPRETATION OF WHAT HAPPENED HERE IS YOU'RE SAYING GENERALLY GOING
BACK TO VOLB, THE INDICATES ARE CLEAR, IT'S A JURY QUESTION IN THIS CASE BECAUSE
OF THE OPTION THAT WAS PRESENTED YOUR CLIENT WAFRD THAT OPPORTUNITY TO HAVE
A JURY DO IT BECAUSE YOU THOUGHT IT WAS TO YOUR ADVANTAGE. JURY ACCESS CAN BE
WAIVED MUTELY IN LOTS EVER CASES, RIGHT? MATTHEW A. SCHIAPPA:
RIGHT. ON THAT ISSUE THE PARTIES HAD AGREED THE AGREEMENT THAT WAS MADE ON
THE RECORD AND INITIALLY SUGGESTED BY DEFENSE COUNSEL AND ACKNOWLEDGED BY DEFENSE
COUNSEL WAS WE'LL DO IT YOU BELIEVE A MOTION FOR JUDGMENT STANDARD. WHY WOULDN'T
I ACCEPT THAT AS THE PLAINTIFF'S COUNSEL. JUSTICE PATTERSON:
SO DID YOU WAIVE THAT ISSUE? DID YOUR CLIENT WAIVE THE RIGHT TO A JURY
DETERMINATION ON THAT ISSUE? MATTHEW A. SCHIAPPA: YES. THE JUDGE
ON THE RECORD MADE SURE THAT THIS PROCEDURE, I THINK MR. MINTER FIRST
SAID HE WAS LOCKED IN AND I HAD TO GO AND SAY NO ONE COULD APPEAL THIS PROCEDURE
BECAUSE I DON'T THINK THE TRIAL THOUGHT IT WAS CORRECT. JUSTICE
PATTERSON: SO IF THIS COURT MAKES A DETERMINATION OF WHETHER OR NOT THIS IS A
JURY QUESTION THAT ISSUES IS NOT EVEN RAISED BY YOUR CASE. YOU'RE SAYING
IT'S AS IF SOMEBODY AGREES TO A BENCH TRIAL AND THEN ON APPEAL SAYS, WAIT A MINUTE
THIS CASE SHOULD HAVE BEEN A JURY TRIAL. MATTHEW A. SCHIAPPA:
WE DIDN'T AGREE TO A BENCH TRIAL. WE DID NOT AGREE FOR THE JUDGE TO BE A
FACTFINDER. I THINK THAT'S WHERE WE'RE CONSIDERING E HAVING THE DISCONNECT,
JUSTICE PATTERSON. WE AGREED. JUSTICE PATTERSON: WHO WAS THE FACTFINDER
ON THAT ISSUE? THERE WAS NONE, RIGHT? MATTHEW A. SCHIAPPA:
ADMITTEDLY. I ONLY HAD TO SURVIVE THE MOTION AND IT WAS GOING TO BE AGREED
BY COUNSEL THAT MT WAS GOING TO BE VICARIOUS LIABILITY FOR GIAMELLA, THE FORKLIFT
OPERATOR. WHY WOULDN'T I TAKE THAT. JUSTICE PATTERSON: I'M
NOT DOUBTING YOUR STRATEGIC ABILITIES WHATSOEVER, COUNSEL. I'M NOT FIGHTING
WITH YOU OVER WHETHER YOU TAKE THE DEAL. THE POINT IS WHAT WAS DONE IN THIS CASE
AND WHAT NEEDS TO BE DONE GOING FORWARD. MATTHEW A. SCHIAPPA:
I THINK THE DEFENDANT HAS TO BE HELD TO THE BARGAIN. THAT WAS A NEGOTIATED
MULTIPLE TIMES ON THE RECORD. I MEAN AS YOU COULD SEE THROUGH THE TRANSCRIPT IT'S
TALKED ABOUT ON NUMEROUS DAYS OF THE TRIAL AND AT THE CRITICAL DAY WHEN THE
JUDGE, THE TRIAL COURT IT WAS ABOUT TO SAY, YOU KNOW, WHAT WE STARTED TAKING TESTIMONY
AND DOCUMENTS ARE COMING IN THAT ONLY I'M SEEING ON THIS ISSUE, LET'S TURN
THE SHIP AROUND BUS I THINK IT'S A FACT QUESTION THE PARTIES AGREED TO GO FORWARD
UNDER THIS FRAME. AND THE DAY BEFORE DEFENSE COUNSEL IS LIKE I MIGHT MAKE THE
MOTION YOU BELIEVE 437 SINCE THE PLAINTIFFS RESTED AND ULTIMATELY
DECIDED NO, I WANT TO PUT ON MY EVIDENCE ON BORROWED SERVANT DOCTRINE ONCE. THEY KNEW
THEY WERE MAKING IT UNDER SOME TYPE OF MOTION FOR JUDGMENT STANDARD. TO SEE
THAT THERE WAS ANY OTHER TYPE OF AGREEMENT OR THAT THE PLAINTIFF SMOU SOMEHOW WAS
INVITING ERROR, I AGREE WITH YOU, JUDGE. UNDER THIS AGREEMENT ULTIMATELY
THAT QUESTION WAS NEVER DECIDED. BUT THAT WAS WHAT THE AGREEMENT WAS AND THAT'S
WHY WE AGREED TO IT. IT WAS AN ADVANTAGE FOR OUR CLIENT. THE JUDGE IS
GOING TO DECIDE IT BUT ON A 440 STANDARD. SO IF WE SURVIVE THE MOTION THAT'S AS
IF THE JUDGE FOUND MT WAS VICARIOUS LIABILITY. JUSTICE
WAINER APTER: PREVIOUS IN YOUR CONVERSATION WITH JUSTICE PATTERSON YOU SEEM
TO AGREE THAT IT WAS YOUR BURDEN. BUT I THOUGHT THAT THE BORROWED EMPLOYEE
QUESTION IS ACTUALLY AN AFFIRMATIVE DEFENSE SO IT WAS ACTUALLY THE DEFENSE'S
BURDEN TO SHOW THAT THE EMPLOYEE WAS A BORROWED EMPLOYEE.
MATTHEW A. SCHIAPPA: CORRECT. JUSTICE WAINER APTER: SO IT WAS DEFENSE'S
BURDEN AND THEN YOU HAD THIS AGREEMENT THAT YOU REACHED AND THEN YOU'RE
ASKING US TO I GUESS AS YOU SAID HOLD DEFENDANT TO THE AGREEMENT.
MATTHEW A. SCHIAPPA: AS WE BELIEVE THE AGREEMENT TO BE AND IT HAD TO BE -- IT
HAD TO BE THAT WAY. I MEAN -- IF WE SURVIVE THE MOTION THAT'S A FINDING,
THAT WAS GOING TO ACT AS THE FINDING THAT MT WAS LIABLE FOR GIAMELLA, THE FORKLIFT
OPERATOR'S CONDUCT. JUSTICE PATTERSON: WAS THAT PART OF THE
AGREEMENT? MATTHEW A. SCHIAPPA: YEAH. I MEAN I THINK IT'S
VERY CLEAR. THEY'RE GOING TO MAKE THE MOTION BY 440. IF THEY WIN IT WE'VE LOST.
JUSTICE PATTERSON: DID YOU SEE TALK ABOUT WHAT THE RAMIFICATIONS
WOULD BE IF IT WENT ONE WAY OR THE. MATTHEW A. SCHIAPPA: IT
COULD NEVER GO TO THE JURY. IF WE WON THE 440 MOTION IT COULD NEVER GO TO THE
JURY BECAUSE WITNESSES AND EVIDENCE WAS BEING ONLY SHOWN TO THE TRIAL COURT SO
NOBODY ELSE COULD MAKE THE DECISION. WHAT THE AGREEMENT WAS IS THEY'RE MAKING
IT UNDER A MOTION FOR JUDGMENT STANDARD AND IF WE WIN IF WE DEFEAT IT THAT
WOULD ACT AS THE FINDING WE'LL UPHOLD THE JURY. AND ACTUALLY SINCE THE JUDGE RESERVED
ON IT WE JUST INSTRUCTED THE JURY THAT FOR THEIR PURPOSES, THEY'RE TO ASSUME
THAT MT IS LIABLE FOR GIAMELLA'S CONDUCT AND THEN DETERMINE WHETHER OR NOT THE
FORKLIFT OPERATOR BREACHED HIS DUTY OF CARED WHICH OBVIOUSLY THE JURY FOUND THAT
THEY DID. AND THEN THE COURT ULTIMATELY SIX NO, SIR LATER IN JUNE OF THE NEXT
YEAR FINALLY DECIDED THE MOTIONS AFTER EXTENSIVE POST TRIAL BRIEFING ON THE
ISSUE. JUDGE SABATINO: LET ME ASK YOU SOMETHING FOR BROAD
PUTTING ASIDE THE PROCEDURE IN THIS CASE. MORE BROADLY IN TERMS OF GALVAO. GALVAO
HAS REVISED THE STANDARD IS NOW LIKE A SIX PART TEST, FOUR PARTS ON CONTROL,
TWO PARTS ON BUSINESS FURTHERANCE. IS THERE ANYTHING ABOUT THAT REVISED VERSION
OF THE TEST THAT STRUCTURELY OR SYSTEMICLY PRESENTS CHALLENGES FOR SAYING
ALL OF THESE THINGS ARE JURY QUESTIONS. I'LL TEASE OUT ONE EXAMPLE FOR YOU. ONE OF THE
FACTORS IS DID THE GENERAL EMPLOYER HAVE THE RIGHT TO TERMINATE THE NEGLIGENT
EMPLOYEE OR NEGLIGENT WORKER. DID THEY HAVE A RIGHT TO TERMINATE? IS THAT THE
KIND OF QUESTION THAT WE SAID WANTS JURORS TO EVALUATE, THE LEGAL RIGHT TO
TERMINATE SOMEBODY? OR ARE YOU PERFECTLY FINE WITH LET'S EXPLAIN ALL THIS TO THE
JURY IN SOME JURY CHARGE AND THEY'LL FIGURE IT OUT? MATTHEW
A. SCHIAPPA: WELL, THOSE FACTORS, JUDGE, WERE PART OF THE BUSINESS FURTHERANCE
TEST WHICH PRIOR CASE LAW WAS SAYING WAS A QUESTION OF FACT. SO I CAN'T
COME UP HERE AND STAND AND SAY THAT IT'S NOT. JUDGE SABATINO: THERE'S
NO REASON FOR US TO REVISIT THAT HERE, TO RECESS THINK IF ANY OF THIS IS BEYOND
THE JURY'S KEN? MATTHEW A. SCHIAPPA: THEY SAID THESE ARE WHAT
WE WANT TO LOOK AT IN THE BORROWED SERVANT CONTEXT. BECAUSE REALLY ALL YOU'RE
DOING IT'S THE SAME ANALYSIS EVEN IF YOU HAVE ONE EMPLOYER. YOU HAVE AN
EMPLOYEE THAT IS NEGLIGENT, RIGHT. IS IT RIGHT TO HOLD THE EMPLOYER VICARIOUS LIABILITY,
SOMEBODY ELSE HOLD THEM LIABLE FOR THIS PERSON'S CONDUCT. DO THEY GET ENOUGH
BENEFIT, IT DOESN'T CHANGE BECAUSE HAVE YOU TWO ENTITIES THAT MAY BE LIABLE IN THE
SUPREME COURT IN GALVAO SAID YOU COULD HAVE DUAL. THEY BOTH COULD EXERT ENOUGH
TROEL AND GET ENOUGH OF A BENEFIT. SO IT DOESN'T CHANGE THE FUNDAMENTAL QUESTION,
IS IT ELSE QUICK ABOUT. THIS ISN'T A DIRECT CLAIM AGAINST MT. IT'S NOT
A FAILURE TO TWRAN, SUPERVISE, ONE OF THE EMPLOYEES WAS NEGLIGENT. SHOULD THEY
BE VICARIOUSLY LIABLE ON THAT. I MEAN THEY GIVE THEM I THINK IT'S UP TO
11 FACTS THAT WE GIVE THE JURY TO HAVE TO CONSIDER. SO I DON'T THINK THE
ANALYSIS IN GALVAO IS ANYMORE STRINGENT OR MORE DIFFICULT THAN THAT.
JUSTICE WAINER APTER: YOU AGREE THAT YOUR CLIENTS COULD NOT RECOVER FROM CSNJ
BECAUSE OF THE WORKMAN'S COMPENSATION BAR. MATTHEW A. SCHIAPPA:
CORRECT. JUSTICE WAINER APTER: IS THIS GIVING YOUR CLIENTS
SOME SORT OF WINDFALL BECAUSE OF HOW THEY DECIDED TO STRUCTURE THEIR BUSINESS
RELATIONSHIP? MATTHEW A. SCHIAPPA: NO. BECAUSE IT'S CLEAR
THAT IN ANY CASE A DEFENDANT NEVER GETS TO HAVE THE EMPLOYER ON THE VERDICT SHEET.
THEY NEVER GET A CREDIT OR AN APPORTIONMENT FROM THE EMPLOYER. SO
THERE'S NO OTHER WORSE OR BETTER POSITION THAN ANY OTHER CODEFENDANT WOULD HAVE BEEN
OR ANY OTHER DEFENDANT WOULD HAVE BEEN WHEN THE EMPLOYER, ANOTHER EMPLOYER
WAS POTENTIALLY LIABLE. THERE WAS ANOTHER QUESTION ON THE RECORD AND I FORGOT
WHAT DAY OF THE TRANSCRIPT IT WAS, I FORGET. BUT WE HAD A LONG DISCUSSION
ABOUT SAYING JUDGE BRADSHAW, THE TRIAL COURT ASKED WHO WOULD HAVE PAID, YOU KNOW,
GIAMELLA, NOT MY CLIENT, IF GIAMELLA GOT HURT, RIGHT, WHO WOULD HAVE -- THE
WORKER'S COMPENSATION CLAIM BEEN, MT OR CSNJ AND NOBODY KNEW. I CERTAINLY SUBMITTED
IT CERTAINLY WOULD HAVE BEEN MT BUT YOU CAN GO THROUGH THE CONTROL TEST AND
EVERYTHING ELSE. BUT BE THAT AS IT MAY, I DON'T THINK MT STOOD IN WORSE POSITION
OR BETTER POSITION THAN ANY DEFENDANT THAT FACES ANSWERS EMPLOYER, ANOTHER
EMPLOYER WHO MAY BE NEGLIGENT BUT YOU DON'T GET THAT APPORTIONMENT ON THE VERDICT
SHEET. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO PRESENT?
MATTHEW A. SCHIAPPA: NO. CHIEF JUSTICE RABNER:
MR. MINTER, BRIEF REBUTTAL. PATRICK B. MINTER: JUST VERY
QUICKLY AND I APPRECIATE THE COURT'S INDULGENCE. I WANTED TO ADDRESS ONE
THING ON THE WEBSITE THAT YOUR HONOR BROUGHT UP. ONE OF THE THINGS I THINK IS
IMPORTANT IN WHAT YOU WERE CITING FROM, JUSTICE. THE FIRST
SENTENCE ON THAT WEBSITE SAID QUOTE IN CONJUNCTION WITH CONTAINER SERVICES OF NEW
JERSEY AND AFFILIATED COMPANY. SO IT WAS NOT PROCLAIMING THAT MT DID ALL
THESE THINGS. I THINK THAT THAT'S IMPORTANT TO POINT OUT.
JUSTICE FABIANA PIERRE-LOUIS: IN CONJUNCTION MEANS YOU'RE DOING SOMETHING
ALONG WITH SOMEONE ELSE. I THINK JUSTICE APTER POINT OUT THAT YOU NOTED
THAT THE APPELLATE DIVISION CAME UP WITH THESE INSTANCES OUT OF WHOLE CLOTH AND
OUT OF THINK AIR. IN CONJUNCTION MEANS BOTH COMPANIES ARE DOING IT, IT'S
BEING DONE ALONG WITH ANOTHER COMPANY, RIGHT? PATRICK B. MINTER:
RESPECTFULLY THIS WAS A SERVICE PERFORMED BY CONTAINER SERVICES.
JUSTICE FABIANA PIERRE-LOUIS: IT SHOULD HAVE JUST SAID THAT. YOU NOTED THAT IT WAS
INARTFULLY WRITTEN ON THE WEBSITE. PATRICK B. MINTER: I'M
REACTING TO THE DISCUSSION ABOUT THE WEBSITE THAT SENTENCE WAS NOT BROUGHT
UP. I WANTED TO MAKE SURE THAT I IDENTIFIED THAT. JUSTICE
PATTERSON: DO YOU AGREE WITH YOUR ADVERSARY'S CHARACTERIZATION OF THE
PROCEDURAL ISSUE HERE? PATRICK B. MINTER: JUST IN --
JUSTICE PATTERSON: YOUR ADVERSARY IS SAYING THAT YOU CAME UP WITH COLLECTIVELY
CAME UM WITH AN AGREEMENT TO TAKE THE ISSUE AWAY FROM THE JURY AND A
SUBSTITUTE FOR THAT NOT A FACT FINDING BY THE TRIAL COURT IN WHICH THE -- YOUR
ADVERSARY WOULD HAVE THE BURDEN BUT A MOTION PROCEDURE THAT WOULD SHIFT THE
BURDEN IN ESSENCE TO YOU. PATRICK B. MINTER: CLEARLY WHAT WAS SAID
ON THE RECORD WAS SAID ON THE RECORD IN THE HEAT OF TRYING THE CASE. SO
I'M NOT GOING TO RUNAWAY FROM ANYTHING I SAID. JUSTICE PATTERSON:
I'M NOT ASKING YOU ABOUT SPECIFIC STATEMENTS ON THE RECORD.
PATRICK B. MINTER: WHAT I THOUGHT WE WERE DOING. JUSTICE
PATTERSON: WHAT YOUR CONTENTION. PATRICK B. MINTER: MY CONTENTION
ABOUT WHAT WE WERE DOING IS WE WERE TAKING THE BORROWED SERVANT DOCTRINE
ISSUE AWAY FROM THE JURY. AND THERE WAS REALLY ONE WITNESS, MR. SANTOMO, WHO THE
COURT WOULD TELL THE JURY TO COME IN AT 1030, THE COURT WOULD TAKE THE
TESTIMONY FROM MR. SANTOMO ON THE THE BORROWED SERVANT OUTSIDE THE JURY'S PRESENCE.
IT DOESN'T MAKE ANY SENSE WERE YOU'RE TAKING THAT ISSUE AWAY FROM THE JURY
AND HE HEARD THAT ISSUE THEN. JUSTICE PATTERSON: ARE YOU CONTENDING
THAT IF THE COURT AGREES WITH THE APPELLATE DIVISION AS TO THIS BEING AN
ISSUE OF LAW, OKAY, THAT ARE YOU AGREEING WITH YOUR ADVERSARY THAT THE CASE IS OVER
AS OPPOSED TO GOING BACK TO A REMAND ON THE ISSUE OF THE BORROWED SERVANT
DOCTRINE? PATRICK B. MINTER: WHAT I'M URGING THE COURT TO DO
IS REVERSE THE APPELLATE DIVISION AND REINSTATE THE TRIAL COURT'S DISMISSAL. SO,
YES. I DON'T THINK EITHER SIDE -- CERTAINLY EITHER SIDE IS NOT ASKING
FOR A REDO ON DAMAGES OR -- I DON'T THINK ANYONE IS ASKING FOR.
JUSTICE PATTERSON: I'M NOT TALKING ABOUT DAMAGES, ARE YOU CONCERNED THAT THE ISSUE
OF THE BORROWED SERVANT, OKAY, WAS NEVER DECIDED BY ANY FACTFINDER?
PATRICK B. MINTER: I'M NOT AND I'LL TELL YOU WHY. I BELIEVED AND I KNOW
WE TALKED ABOUT AS A MATTER OF LAW AND AS A MATTER OF FACT BUT I THINK -- OR
I'LL ADMIT TO USING THOSE TERMS SOMEWHAT LOOSE LG. CLEARLY WHAT JUDGE BRALD SHAW
WAS DOING IS FACTUAL DETERMINATIONS. JUSTICE PATTERSON: THIS
WHOLE CASE IS ABOUT WHETHER THIS IS AN ISSUE OF LAW OR AN ISSUE OF FACT.
PATRICK B. MINTER: BUT THERE CAN BE ISSUES WHERE YOU'RE DECIDING
AN ISSUE AS A MATTER OF LAW BUT THERE'S MIXED QUESTION OF FACT IN THERE APPROXIMATE
I THINK THAT'S WHAT THIS WAS. AND I THINK RESPECTFULLY THAT JUDGE BRADSHAW
GOT IT RIGHT HERE. JUSTICE PATTERSON: AND IF THIS COURT DOES NOT
AGREE WITH YOU ON THAT POINT, DO YOU SEE AGREE WITH YOUR ADVERSARY THAT THE JURY
VERDICT GETS REINSTATED? PATRICK B. MINTER: NO. I MEAN WE'RE
ASKING -- IN OTHER WORDS, DO I THINK THAT IF THERE'S SOME OTHER MIDDLE GROUND WHERE
THIS COURT SENDS IT BACK FOR A JURY -- I JUST WANT TO MAKE SURE I'M ANGLING YOUR
QUESTION. JUSTICE PATTERSON: I'M TRYING TO UNDERSTAND
WHAT THE REMEDY IS HERE. AND I WAS ASKING YOUR ADVERSARY DOES THERE NEED TO BE
A JURY DETERMINATION OF IN ESSENCE AN ELEMENT OF THIS CLAIM WHICH IS
VICARIOUS LIABILITY, RIGHT, IF, IN FACT, THE PROCEDURE THAT WAS USED AND THE WAY
THE TRIAL COURT HANDLED THIS WAS NOT RIGHT? YOUR SAERZ IS SAYING LOUD AND
CLEAR NO. WE AGREED THAT THIS IS HOW IT WOULD PLAY OUT. I'M ASKING YOU DO YOU
AGREE THAT YOU AGREED THAT THAT'S HOW IT SHOULD PLAY OUT. PATRICK
B. MINTER: I'D PROBABLY PUT YOU BACK BECAUSE I DON'T WANT TO AGREE WITH MY
ADVERSARY BUT I SHOULD AGREE WITH HIM ON IT. WE MADE AN AGREEMENT WE AGREED
TO LIVE BY WHAT JUDGE BRADSHAW DECIDED. I'M HERE BECAUSE I BELIEVE THE APPELLATE
DIVISION GOT IT WRONG. SO I'M NOT SEEKING TO GO BACK TO THE TRIAL COURT.
JUSTICE PATTERSON: OKAY. THANK YOU. PATRICK B.
MINTER: IF THERE'S NO OTHER QUESTIONS, THANK YOU. CHIEF JUSTICE
RABNER: CAN I ASK YOU ONE FOLLOW UP QUESTION. WE HEARD REPRESENTATION THAT
NEITHER SIDE WANTS TO GO BACK AND ARE E REDO DAMAGES. WHETHER YOU WIN OR LOSE
ON THE LEGAL ARGUMENTS THAT HAVE BEEN PRESENTED DO YOU AGREE WITH THAT THAT?
MATTHEW A. SCHIAPPA: YES. I THINK IT WAS ON THE RECORD, TOO,
NOBODY ON WANTED THIS IS TO HAVE TO GO BACK TO TRIAL. THAT'S WHY I WAS SO ADAMANT
WITH JUSTICE PATTERSON. CHIEF JUSTICE RABNER: I THINK A YES OR NO
IS ALL WE NEED. MATTHEW A. SCHIAPPA: YES.
CHIEF JUSTICE RABNER: THAT'S A YES YOU TOO, DO NOT WANT IT TO GO BACK ON DAMAGES
HOWEVER THE COURT SKAN NO. WE WERE SUPPOSED TO ABIDE BY THE JURY'S
VERDICT AND THE JUDGE WAS EITHER GOING TO UPHELD IT OR NOT UPHELD IT.
CHIEF JUSTICE RABNER: THANK YOU.