BBS Member Richard Tavani Successfully Defends a Motion to Implead

BBS member, Richard Tavani, recently prevailed on a Motion to Implead filed by Star Auto Sales, Inc (Star Auto) in the case of Cunalata v. Star Auto Sales, Inc.  On July 26, 2014, our client, The United Way, and Star Auto (a licensed used car dealer) were parties to a written agreement for a vehicle donation program under the terms of which Star Auto would pay The United Way for vehicles donated to the charity.   The agreement provided that Star Auto was solely responsible for towing all donated vehicles. Star Auto ran the vehicle donation program on The United Way’s behalf, even arranging for the toll-free number used for the program to be directly connected to Star Auto’s offices. Star Auto’s principal made arrangements with a subcontractor, D & Z Towing (“D & Z”), to tow vehicles donated to The United Way.  Star Auto’s principal spoke to a D & Z employee to set up the tow.  Star Auto told the D & Z employee, Christian Cunalata, where the vehicle was and directed him where to tow it.  Cunalata sustained significant injuries preparing the vehicle to tow, rendering him totally disabled.  D & Z did not have workers’ compensation insurance.   Cunalata brought a direct New Jersey workers’ compensation claim against Star Auto under Section 79 of the New Jersey Workers’ Compensation Act.  (N.J.S.A.34:15-79).  Under Section 79, Star Auto was deemed to be the statutory employer.  Star Auto then filed a Motion to Implead the United Way, alleging that since it was part of the contract with Star Auto for the vehicle donation program it was also a statutory employer of Cunalata.   In order to prevail on its Motion to Implead, Star Auto needed to show that there existed an adequate factual and legal basis to establish that there was a “substantial likelihood” that The United Way was or may be liable to Cunalata.  The workers’ compensation judge denied the motion noting that there was no evidence to establish that The United Way had any responsibility to tow any vehicle under the contract.  Additionally the judge found that The United Way had no contact with either D & Z or Cunalata to arrange for the towing of the vehicle.  All contacts were made by the principal of Star Auto.  The judge also found that Section 79 liability could not be imposed upon The United Way since only Star Auto contracted with D & Z and, therefore, it alone was Cunalata’s statutory employer.