Lawrence Marino; Laura Marino v. INDUSTRIAL CRATING CO. d/b/a INDUSTRIAL CRATING

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4429
LAWRENCE MARINO;
LAURA MARINO,
Appellants
v.
INDUSTRIAL CRATING CO. d/b/a
INDUSTRIAL CRATING AND
RIGGING COMPANY;
OSCAR J. BOLDT CONSTRUCTION
COMPANY;
MARCAL PAPER MILLS
Appeal from the United States District
Court for the District of New Jersey
(D.C. Civil No. 99-cv-04002)
District Judge: Honorable
Dickinson R. Debevoise
Argued November 20, 2003
Before: RENDELL, BARRY and
MAGILL*, Circuit Judges.
(Filed February 19, 2004)
*Honorable Frank J. Magill, Senior
Circuit Judge for the Eighth Circuit,
sitting by designation.
Robert M. Miele [ARGUED]
Burke, Miele & Golden
100 Washington Avenue
P.O. Box 397
Suffern, NY 10901
Counsel for Appellants
Stephen B. Fenster
Valerie A. Vladyka [ARGUED]
Gallo Geffner & Fenster
115 West Century Road
Paramus, NJ 07652
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
Lawrence Marino, an electrician
employed by Kleinknecht E lectric
Company (“KEC”), was injured on August
7, 1998, in an accident during construction
at the Marcal Paper Mills in Elmwood
Park, New Jersey. At issue in this appeal
is whether Marino, who was working with
riggers on a task associated with the
construction project at the time of his
injury, should be deemed a “special
employee” of the rigging company under
New Jersey law. Because our jurisdiction
is based on the diversity of citizenship of
the parties,1 and New Jersey law applies,2
1The District Court had jurisdiction
over Marino’s negligence action under 28
U.S.C. § 1332(a)(1), as Marino is a citizen
of New York, ICR is a New Jersey
corporation with its principal offices in
Mahwah, New Jersey, and the amount in

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our task is to predict how the courts of
New Jersey would resolve this issue if
presented with these facts.
We do not write on a clean slate, as
the courts of New Jersey have spoken on
this general issue several times, and we
have recently addressed this issue applying
New Jersey law. The application of the
law to the specific facts of Marino’s work
situation requires a careful analysis of the
principles developed in the case law
related to “special employment” situations.
The District Court held that, applying
those principles, Marino was a “special
employee” of the defendant, Industrial
Crating and Rigging Company (“ICR”).
Since special employee status precludes
the bringing of a negligence action against
the special employer, the District Court
granted summary judgment in favor of
ICR and dismissed M arino’s action with
prejudice. We predict that the New Jersey
Supreme Court would conclude otherwise,
and will accordingly reverse and remand
so that the matter may proceed to trial.
I.
In order to gain a contextual
orientation, before exploring the facts, we
will review the basic principles underlying
this issue. The New Jersey courts have
made it clear that special employer cases
like this one are set against the backdrop
of New Jersey’s statutory workers’
compensation scheme, set forth in the
Workmen’s Compensation Act (“WCA”),
N.J. Stat. Ann. §§ 34:15-1 to -142. See,
e.g., Santos v. Standard Havens, Inc., 541
A.2d 708, 712 (N.J. Super. Ct. App. Div.
1988) (discussing the W CA and its
definition of employees who are covered
by the Act). Therefore, we must first have
an understanding of the WCA and the
policies behind it.
In New Jersey, employees who are
injured while working are to receive
workers’ compensation benefits without
regard to fault. Gore v. Hepworth, 720
A.2d 350, 353 (N.J. Super. Ct. A pp. Div.
1998). When an employee receives
workers’ compensation benefits, he
forgoes the right to seek additional tort
remedies from his employer. Id. This
waiver of remedies is explicitly detailed in
the exclusivity provision of the WCA
itself: “Such agreement [to accept WCA
benefits] shall be a surrender by the parties
thereto of their rights to any other method,
form or amount of compensation or
determination thereof than as provided in
[the WCA], and shall bind the employee .
. . as well as the employer . . . .” N.J. Stat.
Ann. § 34:15-8.
The WCA was enacted as a
controversy exceeds $75,000. We have
jurisdiction over the appeal of the District
Court’s final order pursuant to 28 U.S.C. §
1291.
2As the District Court’s jurisdiction
over this matter was based on diversity, the
law of the forum state, New Jersey, applies
on the substantive issue of special
employment. Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 78 (1938).

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mechanism that would protect employees
who are injured in the workplace.
However, another important objective of
the WCA was to pass along the costs of
industrial accidents “as part of the cost of
the product or service provided.” Santos,
541 A.2d at 712. Thus, New Jersey courts
have liberally construed the term
“employee” in the WCA “in order to bring
as many cases as possible within [its]
scope.” Id. This is true when a plaintiff
seeks its protection, as well as “when he
attempts to have himself excluded from
the coverage of the act.” Id. at 713
(quoting Rutherford v. Modern Transp.
Co., 320 A.2d 522 (N.J. Super. Ct. Law
Div. 1974)).
In construing the term “employee”
liberally, New Jersey courts have made it
clear that an employee may have several
employers for WCA purposes, any one of
which may be held liable for workers’
compensation benefits when that employee
is injured.3 Blessing v. T. Shriver & Co.,
228 A.2d 711, 713 (N.J. Super. Ct. App.
Div. 1967). The result of this broad
definition is that the acceptance of
workers’ compensation benefits from one
employer will preclude a common law tort
action brought by the employee against
another employer. Id. The courts of New
Jersey, in analyzing situations in which an
employee might be found to have, in
addition to his primary employer, an
additional “special employer,” have
developed a five-factor test. This test,
based on a treatise on workers’
compensation, was first articulated and
explained in Blessing.
The five factors of the test are
summarized as follows: 1) whether there is
an express or implied contract for hire
between the employee and the employer;
2) whether the work being done is that of
the employer; 3) whether the employer has
a right to control the details of the work; 4)
whether the employer pays the employee’s
wages or benefits; and 5) whether the
employer can hire or fire the employee.
Blessing, 228 A.2d at 713 (relying in part
on 1A Arthur Larson, Workmen’s
Compensation § 48.00, at 710 (1966)).
None of these factors is necessarily
dispositive, and not all five must be
satisfied in order for a special employment
relationship to exist. Id. at 715. However,
several courts have emphasized the
3An employee with multiple
employers for WCA purposes is essentially
free to choose the one employer from
whom he will receive his workers’
compensation benefits. Once he has been
awarded benefits, he may not seek
identical benefits from another one of his
employers, nor may he pursue a common
law tort action against any of his
employers. N.J. Stat. Ann. §§ 34:15-7, -8.
However, if multiple employers are found,
the employer who is ordered to pay the
benefits may seek pro rata contribution
from the other employers if they are joined
as parties to the co mp ensa tion
proceedings. See Conway v. Mister
Softee, Inc., 225 A.2d 707, 708-09 (N.J.
Super. Ct. App. Div. 1967), aff’d, 239
A.2d 241 (N.J. 1968).

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importance of the third factor – the right to
control. See, e.g., Volb v. Gen. Elec.
Capital Corp., 651 A.2d 1002, 1005 (N.J.
1995) (stating that “the most important
factor in determining a special employee’s
status is whether the borrowing employer
had the right to control the special
employee’s work”); Mahoney v. Nitroform
Co., 120 A.2d 454, 458 (N.J. 1956)
(describing the right to control as
“ e s s e n t i a l t o t h e e m p l o ym e n t
relation[ship]”); Blessing, 228 A.2d at
713-14 (noting that the “sheer weight of
authority” regarding the predominant
element of the special employment test “is
undoubtedly on the side of ‘control’”). It
is within this statutory and precedential
framework that we analyze whether
Marino was a special employee of ICR at
the time of his injury.
II.
Keeping these principles in mind,
we will move on to consider the factual
setting of Marino’s work and the accident.
At the time of his injuries, Marino was a
journeyman electrician and a member of
Local 363 of the International Brotherhood
of Electrical Workers (“IBEW”). The
accident occurred while he was employed
by KEC as an electrician who was
assigned to work on a project at Marcal’s
Elmwood Park plant. Marcal had
contracted with KEC to perform the
electrical work associated with a major
construction project that would expand
Marcal’s facilities and add new machinery
to its existing plant. KEC, in turn, had
subcontracted with ICR for its assistance
with the installation and rigging of heavy
electrical switchgear sections, which had
to be hoisted to the second floor of a
building on the site and moved to their
point of installation. W hile the
subcontract specifically delegated to ICR
the rigging work involved in the project,
KEC bore ultimate responsibility for the
completion of this and all other aspects of
the project pursuant to its contract with
Marcal.
The two unions involved in the
Marcal project – the IBEW representing
the electricians, and the International
Association of Bridge, Structural, and
Ornamental Iron Workers (“Iron Workers’
Union”) representing the riggers – have
had a written agreement in place since
1950 outlining the types of work that fall
within the jurisdiction of electricians, and
the types that are properly assigned to
riggers, or iron workers. However, as the
District Court noted, the work performed
by electricians and riggers on a project like
the one at the Marcal site can often
overlap. The parties have conceded that
the unions commonly encounter situations,
often involving the moving and installation
of heavy electrical equipment, in which the
work at issue is not easily classified as
falling within the exclusive jurisdiction of
either electricians or riggers.
To deal with this kind of hybrid
situation, and to avoid costly and time-
consuming jurisdictional disputes, the two
unions over time developed an informal
practice of creating what they term
“composite crews,” using an equal number

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of workers from both unions, to work
together to perform the discrete hybrid
tasks. The parties refer to this practice as
the “composite crew agreement,” although
no written agreement exists, and there is
no specific understanding as to how tasks
are to be performed or which union is in
charge of overseeing the tasks. Because
the hoisting and moving of the switchgears
at the Marcal site involved both the
movement and installation of electrical
equipment, as well as the rigging and
hoisting of that equipment, supervisors
from the two companies working on the
site determined that it fell into this
category of hybrid work. Thus, based on
the composite crew agreement, they
formed a group of four workers – two
from each union – to perform the discrete
task of lifting and moving the three
switchgear sections involved. This all
occurred on August 7, 1998, the day of the
accident.
Prior to that date, Marino had been
performing electrical work for KEC at the
Marcal site for several weeks. On August
7, Marino spent the morning performing
work that was typically assigned to him as
an electrician. Sometime before 11 a.m.,
Marino’s KEC supervisor instructed him
and another KEC electrician, Pat DiNardo,
to work with two ICR riggers, Michael and
Patrick Ruane, to move the switchgear
sections to the point of installation. ICR
did not request Marino by name or
approach him specifically to ask him to
work on the composite crew. Marino’s
testimony reveals that he had worked on
composite crews moving switchgears in
the past, but had never before worked on
one with ICR riggers at the Marcal site.
All parties agree that Michael
Ruane of ICR took charge, directing the
composite crew and instructing Marino
and DiNardo about details such as where
to place their hands and in which direction
the team should move. The crew moved
the first section of the equipment into
place without incident. The accident
occurred while the crew moved the second
section of the switchgear. After hoisting
the second piece up to the second floor, the
crew disconnected the rigging and
positioned four metal skates beneath the
switchgear so that they could roll it to its
final position, where it was to be installed.
As the men were rolling the switchgear
across the floor, they reached a point
where the skates supporting the switchgear
stopped rolling and a skate had to be
repositioned. At the time, DiNardo was
supporting the left side of the switchgear,
which was to be lifted with a jack, and
Patrick Ruane was on the right side.
Michael Ruane told Marino to place a
skate under the switchgear, halfway down
its ten-foot length, and to stand between
the switchgear and a nearby wall in order
to do so when the others raised the unit.
As the crew lifted the switchgear and
Marino began to reposition the skate, the
switchgear began to tilt. Before the men
could stabilize it, the 4,600-pound
switchgear fell over, pinning Marino
against the wall and leaving him with
serious and permanent injuries. At the
time of the accident, Marino had been
working on the composite crew for

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approximately two hours.
During the course of the project at
the Marcal site, ICR made no contributions
to Marino’s wages, benefits, or payroll
taxes, nor did it pay any fee to KEC as
compensation for Marino’s assistance with
this one discrete task. As we have
indicated, there was no written agreement
governing the composite crew arrangement
that was being employed at the time of the
accident, and the oral decision to combine
the unions’ forces was general in nature.
It did not indicate that KEC electricians
became “employees” of ICR while they
served on composite crews, or vice versa,
nor did it declare that ICR supervisors and
employees would have the right to control
such situations, or vice versa. Further,
there could be no formal assignment of
employees of one company to the other
because each was signatory to a collective
bargaining agreement that prohibited it
from assigning, transferring, or subletting
employees to another company that did not
recognize the relevant union as the
collective bargaining representative of
those employees.
M a r i n o r e c e i v e d w o r k e r s ’
compensation benefits from his employer,
KEC, and then instituted a personal injury
action against Marcal and ICR in the
United States District Court for the District
of New Jersey on August 24, 1999.4 The
complaint alleged that the accident was
primarily caused by the negligence of ICR,
in its failure to select safe methods for
moving the switchgear, and secondarily
caused by the negligence of Marcal, in its
failure to adequately supervise ICR’s
conduct at the construction site. At the
conclusion of pretrial discovery, ICR filed
a motion for summary judgment,5 arguing
that, under New Jersey law, Marino was a
“special employee” of ICR at the time of
the accident, and was therefore precluded
by the WCA from pursuing a negligence
action against ICR.
After hearing oral argument on the
motion, the District Court granted the
motion and issued a written opinion on
August 21, 2001. In granting ICR’s
motion, the District Court focused on
Marino’s statements in interrogatories and
depositions, which indicated that he knew
that while he served on the composite
crew, he would be “under the supervision,
direction and control of [ICR].” In the
District Court’s view, these statements
indicated that Marino consented to being
4Marino’s wife was also a plaintiff
in the action, asserting a separate claim for
loss of consortium. For ease of reference,
we will refer to Marino as the plaintiff and
appellant in this opinion, but the impact of
our decision here will extend to cover his
wife’s claim as well.
5Marcal also filed a motion for
summary judgment, but its motion was
denied. Marcal prevailed at trial, where
the jury determined that Marcal was
negligent, but that its negligence was not
the proximate cause of Marino’s injuries.
Thus, no issues related to the claims
against Marcal are raised on appeal.

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loaned to ICR, thus forming an implied
employment contract. The District Court
also found that Marino was performing “a
job that could only lie within ICR’s proper
purview,” and that his actions were
directed and defined by ICR employees.
Thus, although the court noted that ICR
did not pay Marino and that it could not
hire or fire him, the District Court found
that, looking at all five factors together,
Marino should be deemed a special
employee of ICR when he was injured.
Marino filed this timely appeal.
III.
A.
We exercise plenary review over a
district court’s decision to grant summary
judgment. Detz v. Greiner Indus., Inc.,
346 F.3d 109, 115 (3d Cir. 2003). Under
Federal Rule of Civil Procedure 56(c),
summary judgment is proper where no
genuine issue of material fact exists, and
where, viewing the facts in the light most
favorable to the party against whom
summary judgment was entered, the
moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). In
considering a motion for summary
judgment, a district court may not make
credibility determinations or engage in any
weighing of the evidence; instead, the non-
moving party’s evidence “is to be believed
and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
Applying this standard to the facts
before us, we find that no genuine issues
of material fact remain. However, as we
will discuss below, an analysis of the
undisputed facts under New Jersey law
regarding special employer situations leads
us to reach a conclusion here that is the
opposite of that reached by the District
Court.
B.
There are essentially two types of
fact patterns around which the case law in
this area revolves – the “Manpower” or
employment agency cases, in which the
employee is almost universally held to be
a “special employee” of the business
employer that has hired him as a temporary
helper,6 and all other work situations in
6For examples of “M anpower”
cases, see Kelly v. Geriatric & Med.
Servs., Inc., 671 A.2d 631 (N.J. Super. Ct.
App. Div.), aff’d, 685 A.2d 943 (N.J.
1996) (finding that a nurse working for a
temporary nursing services provider was a
special employee of the convalescent
center where she was placed based on the
satisfaction of the five-factor Blessing
test); Antheunisse v. Tiffany & Co., 551
A.2d 1006 (N.J. Super. Ct. App. Div.
1988) (finding that a temporary worker
placed at Tiffany’s to work during the
holiday season was a special employee of
Tiffany’s due to the existence of an
implied contract for hire, the nature of the
assigned tasks, and Tiffany’s right to
control the details of her work);
Chickachop v. Manpower, Inc., 201 A.2d

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which an employee is actually working on
a job or project of someone who is not
technically his employer. In this latter
class of cases, the way in which the
Blessing factors are viewed to apply, given
the specific facts involved, will dictate the
result. As M arino’s situation clearly falls
within the latter category, it is instructive
to review the key cases applying New
Jersey law to this type of fact pattern as the
first step in our analysis.
We begin with Blessing itself. In
Blessing, the plaintiff was an employee of
a detective agency who was regularly
transferred to new locations, as directed by
his primary employer, to provide security
services. 228 A.2d at 712. He was injured
while patrolling the defendant’s foundry,
where he had been working for a few
months prior to his accident. Id. The
court developed the five-factor test
described above and made the following
determinations: although a benefit of the
plaintiff’s work accrued to the defendant,
the work was being done in furtherance of
the detective agency’s contract with the
defendant; although the defendant had
incidental control over the plaintiff, the
detective agency retained significant
control over most aspects of his work; no
consensual relationship or contract existed
between the plaintiff and the defendant;
the plaintiff’s salary was paid by the
detective agency; and the defendant had no
power to hire or fire the plaintiff. Id. at
712, 716. Thus, the court concluded that
the plaintiff was not a special employee of
the defendant at the time of his injury, and
his tort action was allowed to proceed. Id.
at 718.
Our reading of Blessing teaches us
several important lessons. Besides
learning the specific elements of the test
for finding a special employment
relationship, we are instructed that “the
criteria for the determination of an
employee-employer relationship are not
exclusive, but must be rationalized and
applied so that each case may be
considered and determined upon its own
particular facts.” Id. at 715 (internal
quotation omitted). Additionally, the court
indicated in Blessing that “a showing of a
deliberate and informed consent by the
employee” is required before an express or
implied contract for hire will be found,
satisfying the first factor of the test and
weighing in favor of finding a special
90 (N.J. Super. Ct. Law Div. 1964)
(finding that a temporary worker
performing industrial work at a company’s
steel plant was a special employee of the
borrowing company based on the
satisfaction of the Larson test and factors
similar to those listed in Blessing); see also
Whitehead v. Safway Steel Prods., Inc.,
497 A.2d 803 (Md. 1985) (finding that a
temporary worker placed at a company to
perform menial industrial work was a
special employee of that company based
on a five-factor test that resembles the test
set out in Blessing). We will not discuss
this class of cases at length here, as we are
not dealing with a situation involving a
temporary placement agency and, thus, the
analysis of the instant case will not be
derived from the “Manpower” decisions.

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employment relationship that would bar a
tort action. Id. at 716.
The teachings of Blessing were
echoed in subsequent decisions of the New
Jersey Superior Court. In Santos, the
plaintiff was the wife of an employee of
one company who was killed while
working at a subsidiary company’s facility.
541 A.2d at 709. The court applied the
principles discussed in Blessing to find
that a special employment relationship
existed, emphasizing that the subsidiary
had the right to control the employee under
a continuing service agreement that
provided for the regular borrowing of
employees by the subsidiary. Id. at 711-
12. The Santos court explained that under
the Blessing test, “the actual exercise of
control is not as determinative as the right
of control itself.” Id. at 711 (quoting
Smith v. E.T.L. Enters., 382 A.2d 939, 942
(N.J. Super. Ct. App. Div. 1978)). Also,
although the court gave less weight to the
factor that focuses on who paid the
employee’s wages, it found that the fee
paid by the subsidiary to the primary
employer in Santos was essentially a
reimbursement for the wages and costs
associated with the borrowed worker’s
labor. Id. at 712.
A few years later, in Murin v.
Frapaul Construction Co., 573 A.2d 989,
991 (N.J. Super. Ct. App. Div. 1990), the
plaintiff was injured while operating a
cement mixer truck on a construction
project. Although he was performing
work on a project run by the defendant, he
was employed by Consolidated Steel and
Aluminum Fence, a company that
provided certain services – including both
workers and equipment – to be rented by
other organizations. Id. at 991, 994. The
court discussed the five factors listed in
Blessing and found that Consolidated
retained control over the plaintiff’s work,
that the rental agreement between the
companies explicitly stated that it was not
a contract for hire, that the defendant could
not hire or fire the plaintiff, that
Consolidated continued to pay the
plaintiff’s wages, and that the work
performed by the plaintiff was “entrusted
to him by the general employer
[Consolidated].” Id. at 993-94. Under
these facts, the Superior Court concluded
that there was no special employment
relationship. Id. at 994.
The Murin court provided a helpful
explication as to the analysis to be
followed with respect to each of the
Blessing factors. For instance, in
describing the first factor – a contract for
hire – the court indicated that the
employee must consent to such a
contractual relationship because he “loses
certain rights along with those he gains
when he enters a new employment
relationship.” Id. at 993. Thus, a
“showing of deliberate and informed
consent by the employee” is necessary
before a special employment relationship
will be found. Id. As to the second factor
– whose work is being performed – the
court noted that “absent evidence to the
contrary, there is an inference that the
em ployee remains in his general
employment so long as, by the service
rendered another, he is performing the

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business entrusted to him by the general
employer.” Id.
The New Jersey Superior Court had
another occasion to engage in a special
employment analysis in Pacenti v.
Hoffman-La Roche, Inc., 584 A.2d 843
(N.J. Super. Ct. App. Div. 1991). There,
the plaintiff was injured while performing
work for a second employer pursuant to a
written contract providing for his primary
employer to supply maintenance personnel
to the borrowing company. Id. at 844.
Due to the existence of a factual dispute,
the court stopped short of reaching a
decision on the special employment
question. Id. at 847. But before
remanding, the court noted that several
factors cut heavily in favor of finding a
special employment relationship, including
the fact that the plaintiff had been under
the control of the borrowing company and
doing its work for several years. Id. at
845-46.
The most recent guidance from the
New Jersey Superior Court on the five-
factor Blessing analysis is provided in
Gore v. Hepworth, 720 A.2d 350 (N.J.
Super. Ct. App. Div. 1998). There, the
court found that an employee of one
trucking company, who was injured while
riding along with an employee of another
trucking company where the plaintiff had
recently been employed as well, was a
special employee of that second company
at the time of the accident. Id. at 352. The
court applied all five factors from
Blessing, noting that the right to control is
the most important one. Id. at 353-54.
After determining that an oral agreement
between the two related trucking
companies existed, providing for the
exchange of employees between the two
companies, and that the plaintiff had
consented to an employment relationship
with the second company, the court
concluded that the Blessing test was
satisfied. Id. at 354. Regarding the fifth
factor of the test, the court stated that “the
right to control whether plaintiff would be
assigned to work for [the special
employer] is the equivalent of the power to
discharge him.” Id.
In its only decision explicitly
confronting this issue, the New Jersey
Supreme Court briefly addressed the
question of whether a special employment
relationship existed in Volb. Although
much of the court’s decision focused on
other issues, the court did engage in a short
discussion of Blessing and its application
by the Superior Court before finding that
an employee of one construction company
was the special employee of an affiliate
company for which he was performing
construction work. 651 A.2d at 1003-04.
Significantly, looking beyond actual
control exercised by the special employer,
the court focused on the special
employer’s right to control the plaintiff’s
work. Id. at 1005. Also, treating the case
as an easy one, where the facts obviously
indicated that a special employment
relationship existed, the court did not
mention or rely upon the final two
Blessing factors – the payment of wages,
and the power to hire or fire. But neither
did the court explicitly reject those factors
or indicate that they are improper

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considerations in making a special
employment determination.7
And finally, we recently confronted
a New Jersey special employment situation
ourselves in Roma v. United States, 344
F.3d 352, 354 (3d Cir. 2003), where the
plaintiff was a township firefighter who
was injured while fighting a fire at a
United States Naval Air Engineering
Station. He was called to assist at the site
of the fire pursuant to a written mutual aid
fire fighting assistance agreement between
his fire department and the Navy fire
department associated with the station
where the fire occurred. Id. at 355. The
written agreement had been in place for
approximately twenty years and provided
that each party would assist the other when
requested, if the requested fire fighters and
equipment were available, and that when
such assistance was called for, “the senior
officer of the fire department of the
requesting service shall assume full charge
of the operations.” Id. On those facts, we
held that the plaintiff fire fighter was a
special employee of the Navy fire
department when he was injured. Id. at
363.
We analyzed three of the five
Blessing factors as the New Jersey
Supreme Court did in Volb, but also
mentioned the other two arguably less
important factors in passing. Id. at 364.
We determined that the provision giving
the special employer the right to control
the details of the work involved in joint
undertakings pursuant to the mutual aid
agreement satisfied the most important
factor in the special employment test. Id.
Regarding the contract for hire, we noted
that the plaintiff conceded that he had
voluntarily “consented to the special
employer relationship” and “submitted to
the direction of” the special employer. Id.
Finding that the work being done was
essentially that of the special employer, we
noted that the relevant question was
“whether the work being done by the
plaintiff was an integral part of the regular
business of the borrowing employer, or
whether there is a functional integration of
the respective operations of the lending
and borrowing employers.” Id. at 365
(internal quotations omitted). Both entities
were engaged in firefighting at the same
site, thus leading to the conclusion that
their forces and operations were integrated
at the time. Id. Our conclusions regarding
each of these prongs found clear support in
the written agreement governing the
7Following Volb, the New Jersey
Superior Court continues to discuss the
final two factors of the Blessing test. For
example, in Gore, which was decided three
years after Volb, the Superior Court
discussed all five of the factors that were
developed in Blessing. 720 A.2d at 353-
54. Additionally, we note that in Kelly,
which was a “Manpower” case that was
decided a year after Volb, the Superior
Court listed and discussed all five factors
in its special employment analysis. 671
A.2d at 633. The New Jersey Supreme
Court subsequently affirmed the Superior
Court’s decision in Kelly “for the reasons
expressed in the opinion” of the Superior
Court. 685 A.2d at 943.

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12
employee-borrowing situation at issue in
Roma.
C.
Consistent with this line of relevant
decisions, the District Court and the parties
focus our attention on three key questions
under Blessing: 1) Was there a contract for
hire?; 2) whose work was Marino doing?;
and 3) did ICR have the right to control
Marino’s work? The District Court found,
and ICR now argues, that the prominent
factors of the Blessing test, expressed in
those three questions, are satisfied here for
the reasons we have already described. On
appeal, Marino urges that none of the three
factors are satisfied. Regarding the first,
he asserts that his brief work on the
composite crew was not sufficient to
indicate consent to an implied agreement –
either on the part of Marino or ICR – that
they would enter into a temporary
employer-employee relationship. On the
second factor, Marino contends that the
work being done was in furtherance of
KEC’s contract with Marcal, or at the very
least was the work of both KEC and ICR.
And as to the third factor, Marino argues
that despite the nominal actual supervision
of the work by Michael Ruane of ICR,
ICR had no right to control Marino, nor
could it hire or fire him, affect his pay, or
dictate how and when he should do his job.
We find Marino’s arguments to be
very persuasive. First, with respect to the
issue of the “contract for hire,” the only
contract here was the “composite crew
agreement” – a decades old informal union
cooperation understanding that bears no
resemblance to a contract for hire. If
anything, this agreement seems to dispel
the notion that Marino was actually
contracted for by ICR to do this work.
Unlike every other fact pattern in which a
“special employment” relationship has
been found to exist, there was no ongoing
contractual arrangement for the use by ICR
of Marino’s services or those of KEC
electricians generally. See Roma, 344
F.3d at 355 (describing an established
agreement governing situations in which
one fire department would borrow
employees from another fire department);
Gore, 720 A.2d at 354 (describing an
agreement by which employees of one
company would be temporarily hired by
the other company when work for either
company declined); Pacenti, 584 A.2d at
844-46 (describing a contract providing for
one company to supply maintenance
workers to another company, along with a
five year period during which an implied
contract for hire between the plaintiff and
defendant company was likely formed);
Santos, 541 A.2d at 709-10 (describing an
“est a b l is h e d p r o c e d u r e ” w h e r e b y
employees of one company would
regularly be assigned to work another
company’s plant when their own company
closed for the winter). To the contrary, the
composite crew agreement at most
establishes a joint undertaking. It does not
include specific provisions creating a
procedure for one union to borrow or
temporarily hire workers associated with
the other union for a specific purpose, as
in Pacenti, nor does it form an
understanding about such a relationship
between two parties that will be resorted to

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13
regularly in the future, as in Roma.
Further, we find little support for
the proposition that the “implied”
agreement found to exist by the District
Court can satisfy the “contract for hire”
element under Blessing. See Murin, 573
A.2d at 993 (emphasizing the importance
of the consent requirement and asking
whether the employee and both employers
understood that the employee would
become employed by the special employer
for a given purpose); Blessing, 228 A.2d at
716 (indicating that “a showing of a
deliberate and informed consent by the
employee” is required before an implied
contract will be found); Chickachop, 201
A.2d at 95 (describing the typical
“Manpower” case where the employee
knows he will be “hired out to special
employers” and he voluntarily accepts
such employment). To find that such an
implied contract exists here would seem to
emasculate the contractual requirement
that the New Jersey courts have actually
applied relatively strictly. The absence of
an explicit contract here, along with the
absence of any other indications that
Marino knowingly formed an implied
contract for hire with ICR when he joined
the composite crew, cuts heavily against a
finding that Marino was a special
employee of ICR.
Next, as to the notion that Marino
was doing ICR’s work, we are not
convinced that this element is as easily
satisfied as the District Court’s decision
indicates. Given the case law described
above, we understand that this factor
requires us to look at the work actually
being performed and conclude that a
special employment relationship is
established where the employee is doing
work that is more accurately characterized
as work of the special employer alone, as
in the “Manpower” cases. See
Antheunisse, 551 A.2d at 1008 (finding
that a temporary worker’s duties were
“definitely part of [the temporary
employer’s] regular business,” rather than
the work of the temporary agency); see
also Murin, 573 A.2d at 993 (stating that
“absent evidence to the contrary, there is
an inference that the employee remains in
his general employment so long as, by the
service rendered another, he is performing
the business entrusted to him by the
general employer”). In the situations
where no special employee relationship
was found, such as Blessing, where
Blessing’s work for the defendant
remained within the realm of his regular
detective work, this was not the case.
The District Court reasoned that
because KEC subcontracted with ICR to
have ICR perform this work, it was ICR’s
work that was being done. But we think
the issue is a bit more complicated than
that. The work was essentially that of both
KEC and ICR, in the sense that ICR was
responsible for doing it under its
subcontract with KEC, but KEC was
ultimately responsible for this work
pursuant to its contract with Marcal.
Actually, the fact that electricians as well
as riggers are routinely called upon to do
this type of hybrid work seems to detract
from, rather than support, the existence of
a special employment relationship here.

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14
The very fact that the composite crew was
formed indicates that the task involved
presented a situation that was not clearly
the work of either riggers, or of
electricians, alone. In fact, it appears to us
that the task was as much the work of
electricians as it was of riggers. We think
that although M arino’s work on the
composite crew may have rendered a
service that benefitted ICR in its work on
the project, it ultimately served a purpose
that was within KEC’s responsibilities to
Marcal under its general contract. We thus
conclude that the work he performed
should not necessarily be deemed to be the
work of ICR, and might actually be
characterized as more the work of KEC –
because of its ultimate responsibility for it
– than that of ICR. In any event, this
factor does not point toward the existence
of a special employment relationship as
ICR urges.
And finally, we view the issue of
the “right to control” to require more than
an examination of who assumed control
over the task of the composite crew.
Rather than looking to actual control that
was exercised by the putative special
employer, we have noted that the focus of
the case law is on the right to control the
employee in his work. See, e.g., Roma,
344 F.3d at 365 (describing the “all-
important third prong” of the test as
“whether [the special employer] had the
right to control” the plaintiff); Santos, 541
A.2d at 711 (citing Mahoney and
emphasizing that the actual exercise of
control “is not as determinative as the right
of control itself”). Looking beyond
Marino’s statements and the evidence
related to Michael Ruane’s instructions as
the task was unfolding, we would have
difficulty concluding that ICR had a right
to control Marino’s work as a member of
the crew.8 For instance, if the KEC
electricians were scheduled to take a
coffee break before the crew was finished
moving the switchgear, nothing in the
record indicates that the ICR workers or
supervisors would have had any right to
prevent Marino and the other KEC
electrician on the crew from stopping their
work to take that break. In fact, there is no
indication in the record that ICR had the
right to control anything with respect to
Marino’s work on the crew, only that its
employees took control over details that
were “incidental in nature and of no
8We emphasize that, with respect to
the control analysis, this case is factually
distinguishable from Roma, despite ICR’s
urging that Roma dictates the outcome of
this appeal. As we noted above, Roma
involved a written agreement providing for
the borrowing of fire fighters from one
department by another. 344 F.3d at 355.
Moreover, the same written agreement
explicitly indicated that, when a joint
effort was required, the borrowing
department would have the right to assume
full control over the fire fighters from both
units. Id. Thus, the control prong of the
test was easily resolved in Roma and
clearly cut in favor of finding a special
employment relationship. Id. at 365.
Here, there is no such provision in the
“composite crew agreement.”

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15
particular legal significance.” Id. at 716.
Related to the “right to control”
element of the test, the final two Blessing
factors, while perhaps not viewed as being
as important as the first three, can
nonetheless be helpful in resolving any
doubt that may remain in close cases. See,
e.g., Murin, 573 A.2d at 994 (discussing
the final two factors in a case where the
first three factors did not clearly support a
finding that a special employment
relationship existed); Blessing, 228 A.2d at
713 (same). Here, both factors strongly
point toward the absence of a special
employment relationship. Marino was
paid by KEC for the duration of his work
at the M arcal site. ICR made no
contributions to his wages or benefits, nor
did it offer any payment to KEC in
exchange for Marino’s work on the
composite crew.
Similarly, KEC retained the right to
hire or fire Marino throughout the project.
ICR had no right to select which
electricians were assigned to the composite
crew, and it had no power to remove
Marino from the Marcal project. Although
ICR asserts that it could have requested
that KEC replace Marino with another
worker if his performance was deficient,
we do not think that to be equivalent to the
power to hire or fire Marino under these
circumstances. We are not persuaded by
ICR’s reliance on statements made by the
New Jersey courts in cases where the
temporary employers of the plaintiffs
retained some right to screen workers
before they were placed and could also
unilaterally decide to remove workers
from their facilities. See, e.g., Gore, 720
A.2d at 354 (finding that such power was
the “equivalent of the power to discharge,”
where the other Blessing factors were
satisfied as well); Kelly, 671 A.2d at 636
(same). The power to potentially ask KEC
to have Marino removed from the
composite crew is not, without satisfaction
of the other Blessing factors, sufficient to
support a finding that ICR had a right to
control Marino or that a special
employment relationship existed in this
case.
Considering all five factors
together, as they relate to the facts before
us, we conclude that Marino was not a
special employee of ICR at the time of his
injury. We believe this conclusion to be
entirely consistent with the decisions of
New Jersey courts applying the special
employment test. In most of those
decisions, the courts faced situations that
were characterized by a degree of structure
and formality – whether in the form of a
temporary placement agency and its
practices, or a formal contractual
relationship governing the details of the
parties’ relationship – that is simply
lacking here. While we recognize that
cases are not required to include a
Manpow er ag en cy o r a w ritten
employment contract in order to satisfy the
Blessing test, we are reluctant in this case
to impose special employer status on what
appears to reflect the opposite extreme –
an informal, custom ary opera ting
procedure of union laborers, combining to
work together on a discrete aspect of a job,
while retaining their own employer-

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employee relationships.
We note that care must be taken as
we examine any given set of facts to
determine whether a plaintiff falls within
the WCA’s broad definition of “employee”
– in other words, whether a special
employment relationship exists – because
the ramifications of that determination can
be quite significant. See Murin, 573 A.2d
at 993 (applying the Blessing factors
strictly “because the employee loses
certain rights,” including the right to sue
his special employer, “when he enters a
new employment relationship”). As we
have already discussed, if such a
relationship is found, a potential source of
recovery for injury through a negligence
action could be deemed waived by the
plaintiff when he accepts workers’
compensation benefits from his primary
employer. Therefore, although the New
Jersey courts have indicated that the term
“employee” should be defined liberally in
keeping with the broad goals of the WCA,
Santos, 541 A.2d at 712, we will not
enlarge the concept of a special employer
beyond those situations that fit within the
parameters of the case law surveyed
above. Here, we do not believe that the
New Jersey courts would countenance
converting a very temporary and seemingly
routine combination of labor forces to
accomplish a discrete task into a special
employment situation.
IV.
In light of the foregoing discussion,
we conclude that the District Court erred
when it determined that Marino was a
special employee of ICR at the time of the
accident, and was thus precluded from
pursuing a negligence action against ICR.
Accordingly, we will REVERSE the
District Court’s order granting summary
judgment in favor of ICR and REMAND
the case to the District Court for further
proceedings consistent with this opinion.

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