Court Finds that an Illegal Immigrant can Assert a Lost Wage Claim in Connection with a Personal Injury Lawsuit

May 26, 2011

In Kalyta v. Versa Products, et. al., a federal judge found that an illegal immigrant can assert a lost wage claim in connection with a lawsuit for personal injuries.

In this matter, plaintiff had entered the United States under a student visa.  Instead of going to school, plaintiff immediately began working.  Eventually he was hired by a satellite dish installation company.  While installing a satellite dish approximately twelve feet above the ground, the ladder he was using collapsed.  As a result of his fall, plaintiff alleges to have sustained significant injuries.  Plaintiff not only sued for personal injuries, but lost wages due to his inability to work as a result of those injuries (plaintiff’s settlement demand of $4.5 million consists of $1.5 million for lost wages).  Plaintiff filed suit against Home Depot and Louisville Ladder.

The defendants moved for summary judgment to bar plaintiff from asserting a claim for lost wages.  In their motion, the defendants contended that as plaintiff was not authorized to work in the United States at the time of the accident, he should not be permitted to recover for past and future lost wages.  To support their argument, the defendants relied, in part, on Immigration Reform and Control Act of 1986 (“ICRA”) which created a “comprehensive scheme prohibiting the employment of illegal aliens in the United States.”  The defendants cited case law in other jurisdictions holding that allowing the award of back pay and lost wages to undocumented aliens circumvented the ICRA’s goal of preventing illegal immigration.  In addressing this argument, the Court recognized that the Third Circuit Court of Appeals has not issued a ruling as to whether an individual can recover for economic losses in the context of a personal injury lawsuit when that individual cannot legally obtain work in the United States.

In this matter, the court recognized the general proposition that “every person is entitled to the equal protection of the law [and] every alien, whether in this country legally or not, has a right to sue those who physically injure him.”  The court than continued to evaluate cases from various jurisdiction addressing whether an illegal alien was entitled to lost wages as a component of a personal injury case.  In performing its case review, this court noted a distinction between those illegal aliens who fraudulently obtained employment (e.g. presented fake identification) and those who were hired by an employer who did not check that individual’s immigration status.  Specifically, the court noted that in other District Court decisions holding that an illegal alien’s attempt to claim lost wages was impermissible was based, in part, on that fact that that individual utilized fraudulent and/or counterfeit documents to obtain employment.

Due to the differing decisions in the various jurisdictions and that the Third Circuit Court of Appeals has issued no decision on this issue, the court turned to New Jersey state court decisions in deciding whether plaintiff could pursue his lost wage claim.  The court noted that the New Jersey Appellate Division has held that “where the governing workplace statutory scheme makes legal employment a prerequisite to its remedial benefits, a workers’ illegal alien status will bar relief thereunder.”  However, the court noted that the defendants failed to identify any New Jersey  authority that states legal employment is a prerequisite to recovering lost wages in a personal injury action.  Accordingly, the court concluded that “neither IRCA nor New Jersey law prohibits lost wages damages for undocumented workers in the personal injury tort context.”

While the court denied the motion for summary judgment, it did acknowledge that it was possible that any economic report offered by the plaintiff may be found inadmissible due to it being based solely on American wages and not considering the possibility of deportation, back and forth migration and prevailing wages in plaintiff’s home country.

Prior to this decision, it was a widely held belief that an undocumented plaintiff could not assert a lost wage claim.  Generally, where a plaintiff claimed during discovery they would pursue a lost wage claim, at trial they usually would not do so as the plaintiff would open themselves to possible deportation and tax issues.  With this decision, plaintiffs will have the opportunity to present a lost wage claim to a jury.  However, to do so, the plaintiff must weigh the possibility of deportation and criminal charges for failing to pay taxes.  Also, plaintiff’s illegal immigration status should be presented to the jury, which may create a negative attitude towards the plaintiff.

Supreme Court Overturns Decision in Kieffer — Invalidates Ruling That Party Owes all Defense Costs in Connection with Slip and Fall Accident

May 17, 2011

The New Jersey Supreme Court has overturned the Appellate Division’s decision announced in Kieffer v. Best Buy, et. al.. In Kiefer, the Appellate Division found that despite all defendants being dismissed via summary judgment in connection with a slip and fall accident, the defendant responsible for onsite cleaning was required to pay all defense costs incurred by the two co-defendants under indemnity agreements contained in cleaning contracts.

As way of background, on June 19, 2004, plaintiff slipped and fell inside a Best Buy store. Plaintiff contended that the aisle where she fell was very slippery. Accordingly, plaintiff sued Best Buy, who in turn filed a third party complaint against AIC, its cleaning contractor. In its third party complaint, Best Buy demanded that AIC provide a defense and indemnification. This demand was made under the Hold Harmless Clause of the contract which provided that AIC agreed to:

Indemnify, defend and hold harmless, Best Buy…from and against any and all losses, costs, obligations, liabilities, damages, actions, suits, causes of action, claims, demands, settlements, judgments, and other expenses, (including but not limited to cost of defense, settlement and reasonable attorney’s fees) of whatever type or nature, including, but not limited to, damage or destruction to property, injury to any person or persons, which are asserted against, incurred, imposed upon or suffered by Best Buy by reason of, or arising from ….the acts or omissions of Contractor (its officers, directors, employees or agents).

Additionally, the contract provided that Best Buy was to be named as an insured under the AIC policy.

AIC had hired All Cleaning to perform the cleaning services at the Best Buy store in question. Accordingly, AIC filed suit against All Cleaning demanding a defense and indemnification pursuant to their contract. Under that agreement, All Cleaning agreed to:

hold harmless and indemnify [AIC], [their] officers, shareholders, directors, agents, attorneys, employees[,] and each of [their] customers from any connection with any act of negligence, omission, or conduct arising out of the operation of [their] performance or non-performances of the Services.

In the trial court, Best Buy moved for summary judgment against the plaintiff on liability and against AIC on its contractual indemnification claim. AIC opposed Best Buy’s motion seeking contractual indemnification, but also cross-moved for summary judgment against plaintiff on the issue of liability and All Cleaning as to its contractual indemnification claim. The court granted summary judgment in favor of all three defendants with regard to liability. Further, the court granted summary judgment in favor of Best Buy and AIC regarding their respective contractual indemnification claims. The court awarded Best Buy $25,790.09 in counsel fees and costs. Likewise, the court awarded AIC $11,763.75 in counsel fees from All Cleaning. Ultimately, All Cleaning was found responsible for paying all attorney’s fees.

The Appellate Division found that under the terms of All Cleaning’s indemnity agreement, it was obligated “among other conditions to indemnify them for all claims, demands, or assertions, arising out of or arising from the performance of its cleaning services at the Best Buy stores on AIC’s behalf and on behalf of AIC’s customers, which would include Best Buy.” The court further noted that “the language contained in both indemnity agreements does not require a finding of negligence on the part of All Cleaning as a condition precedent to trigger the indemnity provisions…rather all that is required is the plaintiff’s claim relate to the subject matter of the service agreement.” Accordingly, the Appellate Division upheld the trial court’s decision.

In reviewing the Appellate Division’s decision, the Supreme Court found that under the contract between All Cleaning and AIC, there was no legal obligation for All Cleaning to reimburse attorney fees when no negligence was found. Specifically, the Supreme Court noted that the indemnity requirements under the Best Buy/AIC contract and the AIC/All Cleaning contract were very different. Under the Best Buy/AIC contract, the duty to defend and indemnify arose in connection with any and all “actions, suits, causes of action, claims [and] demands.” Under the AIC/All Cleaning contract, the duty to defend and indemnify arose in “connection with any act of negligence, omission, or conduct arising out of the operation of [All Cleaning’s] business and [its] performance or non-performance of the service.”

AIC argued that the language “connection with” and “arising out of” should be given the same meaning as the terms “claims” and “demands” set forth in the Best Buy/AIC contract. The Court did not accept this argument and found that “we cannot write a better contract for AIC than the one it drafted for All Cleaning’s signature.” Further “conspicuously absent from the language of this indemnification provision is the explicit obligation to reimburse the legal costs for the defense of suits, causes of actions, and claims that a court later determines to be unfounded.” The key difference between the two contracts was that the AIC/All Cleaning contract was not broad enough to be triggered upon only a claim being made.

Under the general principals of contract interpretation and interpreting indemnity agreements, any ambiguity will be construed against the prospective indemnitee (the party who drafted the agreement). Accordingly, the Court found that AIC was not responsible for reimbursing attorney fees for Best Buy and AIC.

This case is another example of an indemnity provision not being drafted in a manner consistent with holdings announced in prior court cases. Specifically, if a party seeks to have another party indemnify them for not only the negligence of the other party, but their own negligence (or alleged negligence), it must be explicitly stated in the indemnity provision. Additionally, the provision must set forth that the duty to defend and indemnify arises not only upon a finding of negligence, but upon any claim being made our suit being filed alleging negligence.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at to learn more about our firm.

Commercial Driver Can Be Charged Simultaneously with General and CDL DWI

May 11, 2011

The New Jersey Appellate Division has ruled in State v. Nunnally that a commercial driver suspected of drunk driving may be charged under both the law addressing DWI for personal automobiles and the law dealing DWI and commercial drivers. In this case, a group of school children flagged down a Glen Rock police officer and reported that a DPW plow truck had hit two traffic signs and driven away. The police officer followed the truck to the DPW yard and observed the defendant emerge the truck. The defendant allegedly had bloodshot eyes, slurred speech, smelled of alcohol and could not walk or stand without assistance. He was arrested for suspicion of operating a commercial vehicle with a BAC in excess of .04% (NJSA 39:3-10.13). The defendant than repeatedly failed to blow properly into the Alcotest machine. He was then read the warnings pertaining to CDL refusal and was cited for refusal to take a breath test under the general refusal statute (NJSA 39:4-50(a)), not the CDL refusal statute.

The Municipal court (and eventually the Law Division) found that the defendant could not be charged with general refusal. Additionally, the court found that the State could not amend the general refusal charge to a CDL refusal as the 90 days statute of limitations had expired.

The Appellate Division found that the lower court’s decision was correct. Specifically, the Appellate Division found that “a driver of a commercial vehicle who is arrested and charged only with CDL DUI, and who thereafter refuses a breath test, may only be charged under the cognate CDL refusal statute, and may not be prosecuted under the general refusal statute.” However, the Appellate Division did find that the laws governing general DWI and commercial DWI are separate and distinct. Accordingly, the Court held that if a driver violates general and CDL DWI statutes, he can be arrested and charged under both sets of statutes. The Court further noted that a CDL refusal is not a lesser included offense of general refusal and an individual can be found guilty of violating each separate statute.

Finally, the Court found that the statute address commercial DUI does not allow prosecutions based only on observations.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at to learn more about our firm.


May 9, 2011

New Jersey has become the first state to pass a law requiring children under the age of 17 to wear a helmet while skiing or snowboarding. Under the law signed by Governor Christie, the parent or guardian of the child not wearing a helmet will be required to pay a $25 fine. The fine for each subsequent infraction is $100. The law goes into effect November 1st for next ski season.

Erik Anderson

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at to learn more about our firm.

NJ Supreme Court Vacancies to Get Filled

May 6, 2011

Governor Chris Christie and Senate President Stephen Sweeney have resolved their year-long dispute regarding filling vacancies on the State Supreme Court. As previously discussed here and here and here, the Governor and the Democratically controlled Senate have been at an impasse to fill the vacancy created by the Governor’s refusal to reappoint Justice Wallace to the Court. In May 2010, Governor Christie refused to reappoint Wallace to a full term to the Court. He in turn nominated Anne Patterson to fill Wallace’s seat. The Senate refused to conduct hearings on the Patterson nomination until the full Wallace term would have expired in 2012. This position was taken by the Senate, as no other governor had refused to reappoint a sitting justice.

During this impasse, the Chief Justice elevated the senior most Appellate Judge to temporarily fill the Wallace vacancy. This resulted in Justice Rivera-Soto proclaiming that he felt the Chief Justice acted unconstitutionally in elevating the Appellate Judge to the Supreme Court and refused to participate in any case in which that judge also participated. Justice Rivera-Soto subsequently tempered his position and said that he would not participate in cases in which the Appellate Judge cast a deciding vote. Due to this position, lawmakers called for Rivera-Soto to immediately resign or be impeached. In January, Rivera-Soto informed the Governor that he would not seek reappointment to the high court. His term will end on August 31st.

In the compromise reached by the Governor and Sweeney, Christie will withdraw the Patterson nomination for Wallace’s seat and resubmit that nomination for Rivera-Soto’s seat. The Wallace seat will remain “open”, with an Appellate Judge assigned, until March. At that time, the Governor will make his nomination for that seat. At that time, Justice Virginia Long’s seat will also become “open” due to the justice reaching the mandatory retirement age of 70.

Erik Anderson

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at to learn more about our firm.

Employer Not Responsible for Accident Involving Off-Duty Intoxicated Employee

May 3, 2011

The Appellate Division has ruled that an employer is not responsible for the actions of its alcoholic employee when he is not engaged in work related activities and there is no knowledge that the employee has a drinking problem.

In this matter, Eugene Baum was an employee of Future Electronics, which sells semiconductors and their components.  Initially, Baum was an “in house” salesperson.  Eventually, he was transferred to an outside sales job.

On April 20, 2006, Baum struck two teenage girls walking on the side of a road in Kinnelon, New Jersey at 7:45pm.  Earlier in the day, Baum had driven from his home in Dover, New Jersey to a business meeting in Monmouth County.  During discovery, Baum admitted to having been drinking vodka from a water bottle when he drove to and from the business meeting.  After returning home from the business meeting, Baum believes he continued to drink in his house.  Baum then decided to drive to his mother’s house in Kinnelon to get spare tire.  During his drive to his mother’s house, Baum used his cell phone at 7:19pm to check his voice mailbox at work.  The accident happened twenty-five minutes later.

During discovery it was learned that Baum was driving a rental car.  Baum admitted that he was driving the rental car due to the fact that his personal automobile was inoperable.  Baum paid for the rental out of his own funds.  Additionally, Baum noted that he had a drinking problem and had been hospitalized on three occasions for that condition from 2005 to 2006.  However, Baum’s boss testified that he had no knowledge that Baum had a drinking problem and never saw Baum in an intoxicated state.

Plaintiffs filed suit against Baum, Future and the car rental company.  The rental company was dismissed from the action via summary judgment.  At the close of discovery, Future filed a motion for summary judgment, which was also granted.  The plaintiffs appealed that ruling.

In their appeal, plaintiffs argued that the granting of summary judgment was improper as Future could have been found responsible for the happening of the accident under the theories of (1) vicarious liability, based on respondeat superior; and/or (2) negligent retention and/or supervision.

With regard to the plaintiff’s theory of respondeat superior, the Court found that there was no evidence that Baum was acting within his scope of employment when the accident.  The Court noted that Baum admitted that he was driving to his mother’s house for personal reasons.  Additionally, the Court found that Baum checking his work voicemail twenty-five minutes before the happening of the accident was insufficient to establish that he was within the scope of his employment when the accident occurred.

The Court also rejected plaintiff’s argument that Future could be found responsible for the happening of the accident due to the fact that they knew Baum had a drinking problem, but allowed him to become an outside sales person.  In rendering its decision, the Court found that there was no evidence to establish that Future knew of Baum’s drinking problem, or the state he was in at the time of the accident.  The Court wrote, “Future did not supply the vodka to Baum, Baum was not visibly intoxicated from drinking with a client for business purposes earlier in the day, and Baum was nether driving to, nor returning from work when the accident occurred.”

This decision maintains well settled case law that in examining the potential liability of an employer, the notion of fairness and public policy must be considered.  In a case where the employer has not supplied the alcohol (or venue for the consumption of alcohol) and the employee is not in the scope of his employment, an employer will generally not be held responsible for the actions of its employee.

Erik Anderson

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at to learn more about our firm.