(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 4, 2007 – Decided July 25, 2007
LaVECCHIA, J., writing for the Court.
This appeal requires the Court to address who is included in the definition of an employee and entitled to the protection of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
In February 2000, Prudential hired Plaintiff George D’Annunzio as a chiropractic medical director in its Personal Injury Protection (PIP) Department. Prudential’s PIP Department reviews and pre-approves treatment plans submitted by doctors who treat Prudential’s insureds and other covered claimants injured in automobile accidents. Prudential designated D’Annunzio and other doctors in its PIP Department as “independent contractors,” and required them to maintain an active private professional practice and to agree that their hours billed to Prudential would not exceed fifty percent of their total professional practice.
For tax purposes, D’Annunzio executed his “Consultant Agreement” with Prudential in the name of his professional association rather than as a licensed individual. Pursuant to the agreement, D’Annunzio was paid for twenty hours of work per week, to be performed at a designated Prudential PIP claims office from 8:00 a.m. until noon on weekdays. Both parties had the right to terminate the relationship without cause on sixty-days notice.
According to D’Annunzio, Prudential sought to exert extensive control over him. D’Annunzio received a list of duties, workflow instructions, and a time sheet. In the summer of 2000, D’Annunzio informed supervisors of his objection to insurance violations that he perceived were being perpetrated by Prudential, expressing concern about Prudential’s failure to pay MRI bills, hiring non-medical vendors to perform medical evaluations, and improper use of nurse case managers in the approval of medical care.
In August 2000, D’Annunzio’s supervisors informed him that his performance was not meeting expectations. Among other things, he was advised to speed up his review of treatment files and to reduce the number of treatment plans that he was denying. On September 11, 2000, Prudential gave D’Annunzio written notice that it was terminating its agreement with him based on the sixty-day notice provision.
D’Annunzio filed this action against Prudential, alleging he was fired because he had complained about Prudential’s lack of regulatory and contractual compliance and that his termination was in violation of CEPA. He also asserted common law claims for breach of contract and wrongful discharge. The trial court granted the summary judgment motion of the Prudential defendants. Applying the test of Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div. 1998), the court concluded that D’Annunzio was an independent contractor not entitled to advance a claim under CEPA. D’Annunzio’s other claims were dismissed also.
D’Annunzio appealed and the Appellate Division reversed. Also using the Pukowsky test as a paradigm for its analysis, the panel held that whether a professional person is an “employee” under CEPA’s definition must hinge more on the degree of “control and direction” exercised by the employer over the professional worker, and less on the lack of financial arrangements indicative of a traditional employee. It found that the record was replete with evidence suggesting that Prudential controlled and directed D’Annunzio and concluded that the entry of summary judgment for defendant was in error. The matter was remanded to the trial court.
The Supreme Court granted Prudential’s petition for certification.
HELD: D’Annunzio presents many facts that support the creation of an employment relationship for CEPA purposes, notwithstanding that his agreement described him as an independent contractor.
1. CEPA is designed to promote two complementary public purposes: to protect and thereby encourage employees to report illegal or unethical workplace activities and to discourage employers from engaging in such conduct. As broad, remedial legislation, the statute must be construed liberally. (pp. 9-11)
2. CEPA defines “employee” as “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” N.J.S.A. 34:19-2(b). As the Appellate Division noted, the definition does not exclude persons who are designated as independent contractors performing services for remuneration. Our courts have long recognized that, in certain settings, exclusive reliance on a traditional right-to-control test to identify an “employee” does not necessarily result in the identification of all those workers that social legislation seeks to reach. When CEPA or other social legislation must be applied in the setting of a professional person or an individual otherwise providing specialized services allegedly as an independent contractor, the considerations that must come into play are three: (1) employer control; (2) the worker’s economic dependence on the work relationship; and (3) the degree to which there has been a functional integration of the employer’s business with that of the person doing the work. (pp. 11-14)
3. The test for determining those aspects of a non-traditional work relationship was set out in Pukowsky and this Court has already indicated acceptance of that test as appropriate for CEPA purposes. The Pukowsky test is a hybrid that reflects the common law right-to-control test, and an economic realities test. It focuses heavily on work-relationship features that relate to the employer’s right to control the non-traditional employee, and allows for recognition that an employer cannot be expected to exert control over specialized services that are beyond the employer’s ability. Yet, the work may be an essential aspect of the employer’s regular business. Therefore, the test allows for examination of the extent to which there has been a functional integration of the employer’s business with that of the person doing the work. Several questions elicit facts that demonstrate functional integration: Is the work continuous and required for the employer’s business? Is the professional regularly at the employer’s disposal? Is the professional required to perform routine or administrative activities? If so, an employer-employee relationship more likely has been established. CEPA’s deterrent function would be undermined if such individuals were declared ineligible for its protection. (pp. 14-17)
4. The test for an “employee” under CEPA’s coverage must adjust to the specialized and non-traditional worker who is nonetheless integral to the business interests of the employer. The Court reaffirms that the Pukowsky test fulfills that purpose. The trial court and the Appellate Division resorted to the Pukowsky criteria, but the Appellate Division concluded that the trial court did not properly weigh the factors that examine the employer’s right to control the work of a licensed professional like D’Annunzio – the right to manage how the work is performed for the purposes of the employer’s business operations. This Court agrees with the emphasis in the Appellate Division’s analysis and adds that the Pukowsky test also appropriately examines the relationship to determine whether the professional services have been incorporated into the work of the business and the impact of that work on the professional’s ability to offer services to the public. D’Annunzio’s treatment plan review was an integral, indeed essential aspect of Prudential’s operations. Moreover, D’Annunzio presented evidence that his day-to-day activities were controlled in minute detail. His time spent at Prudential’s operations was continuous, week to week, and daily, for a substantial period of time during business hours. His duties included numerous administrative tasks, all to be performed in accordance with Prudential’s protocols to meet their business plan. In sum, D’Annunzio pointed to many facts that support the creation of an employment relationship for CEPA purposes. (pp. 17-21)
Judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED to the trial court.
JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that the Legislature is very much aware of the difference between “employees” and “independent contractors,” and the plain language of CEPA protects employees only; and that the parties’ contract made it clear that D’Annunzio was an independent contractor.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, ALBIN and WALLACE join in JUSTICE LaVECCHIA’s opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion. JUSTICE HOENS did not participate.
SUPREME COURT OF NEW JERSEY
A-
119 September Term 2005
GEORGE D'ANNUNZIO, D.C.,
Plaintiff-Respondent,
and
GEORGE D’ANNUNZIO, D.C., PROFESSIONAL ASSOCIATION,
Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, ART RYAN,
CHIEF EXECUTIVE OFFICER OF PRUDENTIAL, ROGER DEJARON, CHIEF OPERATIONS OFFICER OF PRUDENTIAL, FRANKLIN
BAGGETT, VICE PRESIDENT OF PRUDENTIAL PIP CLAIMS, TONY LOCASTRO, DIRECTOR OF PIP FOR
PRUDENTIAL, LINDA FRAISTAT, NEW JERSEY PIP UNIT, UNIT MANAGER FOR PRUDENTIAL, FRANK HRUSKA,
PIP OPERATIONS MANAGER FOR PRUDENTIAL and KATHY SAVVAS, CLAIMS SUPERVISOR FOR PRUDENTIAL,
Defendants-Appellants,
and
TOM MOONEY, PRESIDENT OF FIRST MANAGED CARE OPTIONS, FIRST MANAGED CARE OPTIONS, JOHN
DOES 1-100 (said names being fictitious), JANE DOES 1-100 (said names being fictitious)
and ABC CORPORATIONS 1-100 (said names being fictitious),
Defendants.
Argued January 4, 2007 – Decided July 25, 2007
On certification to the Superior Court, Appellate Division, whose opinion is reported at
383 N.J. Super. 270 (2006).
Lawrence R. Sandak argued the cause for appellants (Proskauer Rose, attorneys; Mr. Sandak,
Richard S. Reig and Kristin S. Rozic, on the briefs).
William O. Crutchlow argued the cause for respondent (Eichen Levinson & Crutchlow, attorneys).
Keith J. Miller submitted a brief on behalf of amicus curiae Employers Association
of New Jersey (Robinson & Livelli, attorneys; Mr. Miller and John J. Sarno,
on the brief).
Christopher P. Lenzo submitted a brief on behalf of amicus curiae National Employment
Lawyers Association/New Jersey (Green, Savits & Lenzo, attorneys).
JUSTICE LaVECCHIA delivered the opinion of the Court.
New Jersey’s
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, protects workers
who blow the whistle on their employers’ illegal, fraudulent, or otherwise improper activities
that implicate the health, safety, and welfare of the public. The statute extends
to “any individual who performs services for and under the control and direction
of an employer for wages or other remuneration.” N.J.S.A. 34:19-2(b) (defining “[e]mployee[s]” entitled
to CEPA protection). The question here is who is included in that definition.
We have recognized previously that that definition is not limited to a narrow
band of traditional employees. In this appeal, we reaffirm the appropriateness of the
Pukowsky
See footnote 1
test for assessing the status of an alleged “independent contractor” claiming protection
as an “employee” under CEPA.
The appeal comes to us on a summary judgment record that focused solely on the “independent contractor” versus “employee” issue. Because the defendants claimed an entitlement to judgment based on that record, we view the facts in the light most favorable to the party opposing that motion and, therefore, accord to plaintiff all favorable inferences that support his claim to CEPA’s protection. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In February 2000, defendant Prudential Property and Casualty Insurance Company (Prudential) hired plaintiff George D’Annunzio as a chiropractic medical director in its Personal Injury Protection (PIP) Department. Prudential’s PIP Department reviews and pre-approves treatment plans submitted by the doctors who treat Prudential’s insureds and other covered claimants injured in automobile accidents. It is the responsibility of the medical directors and nurse case managers to determine whether the proposed treatments are medically necessary, consistent with the PIP reforms authorized by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Insurers engage licensed medical professionals to provide independent medical judgments as to the medical necessity of treatment plans submitted for approval. See N.J.S.A. 39:6A-3.1(a); N.J.A.C. 11:3-4.7(c)(4). See footnote 2 Prudential opted to meet that requirement by having a cadre of licensed professionals in-house to perform the review function, but it designated those professionals as “independent contractors.” Indeed, Prudential required every licensed medical director to maintain an active private professional practice and to agree that their hours billed to Prudential would not exceed fifty percent of their total professional practice.
Prudential sent D’Annunzio a one-year “Medical Director Consultant Agreement” that was described as “standard” for the position. For tax purposes, D’Annunzio executed the agreement in the name of his professional association (George D’Annunzio D.C.P.A.) rather than as a licensed individual, although the parties apparently agree that only a licensed individual could perform the tasks for which D’Annunzio was retained. Pursuant to the agreement, D’Annunzio was paid $125 per hour for twenty hours of work per week. D’Annunzio agreed to perform his services at a designated Prudential PIP claims office, Monday through Friday, from 8:00 a.m. until noon.
In respect of the relationship between the parties, the agreement stated that
[t]he relationship between Prudential and the Medical Director is that of independent contractor. The Medical Director will maintain his own private practice and provide Medical Director services on a part time basis. . . . None of the provisions of this agreement are intended to create or be construed as creating any agency, partnership, joint venture or employer-employee relationship.
As an independent contractor, [t]he Medical Director will have the sole responsibility for
the payment of all self employment and applicable federal state and local taxes.
Both parties had the right to terminate the relationship without cause on sixty-days
notice. Prudential also had the option of terminating the agreement immediately if D’Annunzio
committed a material breach.
According to D’Annunzio, when he signed the agreement he expected to be permitted
to perform his review function in an independent manner, as one might expect
from a contractor of professional services. Instead, from his first day in Prudential’s
PIP Department, D’Annunzio found that Prudential sought to exert extensive control over him.
D’Annunzio received a list of duties, workflow instructions, and a time sheet. The
list of duties required that D’Annunzio (1) provide leadership and education to the
staff; (2) review claims for medical appropriateness; (3) discuss treatment alternatives with doctors;
(4) help to develop Prudential’s care guidelines; (5) participate in peer reviews of
colleagues; (6) participate in data analysis; and (7) provide in-house coverage through his
physical presence or by being telephonically accessible during required hours. The workflow instructions
included step-by-step directions for D’Annunzio to use in his review of PIP claims.
In addition to requiring D’Annunzio to record his billable hours on Prudential’s time
sheet forms, other accouterments of the job appeared to D’Annunzio to be designed
to make him essentially a cog in the machinery of Prudential’s PIP Department.
See footnote 3
As it turned out, D’Annunzio’s tenure with Prudential was short-lived. During the summer
of 2000 he informed supervisors of his objection to insurance violations that he
perceived were being perpetrated by Prudential and its employees. D’Annunzio allegedly expressed concern
about Prudential’s failure to pay MRI bills, its hiring of non-medical vendors to
perform independent medical evaluations, and the improper use of nurse case managers in
the approval of medical care. In August and early September, D’Annunzio’s supervisors Kathy
Savvas, Linda Fraistat, Frank Hruska, and Anthony LoCastro informed him that his performance
was not meeting expectations. D’Annunzio was advised to speed up his review of
treatment files, to limit his reviews to claims involving chiropractic evaluations, and to
reduce the number of treatment plans that he was denying. On September 11,
2000, Prudential gave D’Annunzio written notice that it was terminating its agreement with
him based on the sixty-day notice provision.
D’Annunzio
See footnote 4
filed this action against Prudential, its parent company, as well as several
officers and employees of Prudential. He alleged that he was fired because he
had complained about Prudential’s “lack of regulatory and contractual compliance” and that therefore
his termination was in violation of CEPA. In addition, D’Annunzio asserted common law
claims for breach of contract and wrongful discharge.
See footnote 5
Limited discovery was conducted, focusing on whether D’Annunzio qualified as an “employee” for
CEPA purposes. On the parties’ cross-motions for summary judgment, the trial court held
in favor of the Prudential defendants. Applying the “Pukowsky test,” the court concluded
that D’Annunzio was an independent contractor not entitled to advance a claim under
CEPA. D’Annunzio’s other claims were dismissed also.
D’Annunzio appealed and the Appellate Division reversed. D’Annunzio v. Prudential Ins. Co. of
Am.,
383 N.J. Super. 270, 276 (App. Div. 2006). Also using the Pukowsky
test as the paradigm for its analysis, the panel held that whether a
professional person is an “employee” under CEPA’s definition must hinge more on the
degree of “control and direction” exercised by the employer over the professional worker
under the circumstances, and less on the lack of financial arrangements indicative of
a traditional employee. Id. at 277. It found that the record was replete
with evidence suggesting that Prudential controlled and directed D’Annunzio, id. at 290-94, and
concluded therefore that the entry of summary judgment for defendants was in error,
id. at 298. The matter was remanded to the trial court. Ibid.
We granted Prudential’s petition for certification,
186 N.J. 608 (2006), and now affirm
the panel’s judgment.
New Jersey’s “conscientious employee” protection policy has as its genesis the decision of this Court in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980), where we held that an at-will employee, wrongfully discharged in violation of “a clear mandate of public policy,” has a common law cause of action against an employer. Following Pierce, the Legislature enacted CEPA, codified at N.J.S.A. 34:19-1 to -8. CEPA is remedial social legislation designed to promote two complementary public purposes: “‘to protect and [thereby] encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.’” Yurick v. State, 184 N.J. 70, 77 (2005) (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). Specifically, in this dispute we are called on to address the scope of CEPA’s protection of “employees” from retaliatory employment action.
Our goal in the interpretation of a statute is always to determine the Legislature’s intent. Wollen v. Borough of Fort Lee, 27 N.J. 408, 418 (1958). To decipher that intent, we look first to the plain language of the statute, Lane v. Holderman, 23 N.J. 304, 313 (1957), and we ascribe to the statutory language its ordinary meaning, DiProspero v. Penn, 183 N.J. 477, 492 (2005). “It is not the function of this Court to ‘rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.’” Ibid. (quoting O’Connell v. State, 171 N.J. 484, 488 (2002)). When the plain language of a statute is susceptible to multiple interpretations, however, then recognized principles of statutory construction allow resort to extrinsic tools to determine the Legislature’s likely intent. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 323 (2000).
CEPA prohibits an employer from taking adverse employment action against any “employee” who exposes an employer’s criminal, fraudulent, or corrupt activities. N.J.S.A. 34:19-3. It authorizes an aggrieved employee to bring a civil suit against an employer who retaliates in violation of the statute. N.J.S.A. 34:19-5. Workers are thus protected from retaliation and employers are deterred from activities that are illegal or fraudulent, or otherwise contrary to a clear mandate of public policy concerning the safety, health, and welfare of the public. See N.J.S.A. 34:19-3; Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998). When enacted, CEPA was “the most far reaching ‘whistleblower statute’ in the nation.” Mehlman, supra, 153 N.J. at 179. A single guiding principle has instructed our interpretation of CEPA in the decades since its enactment. As broad, remedial legislation, the statute must be construed liberally. See generally Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239 (2006); Yurick, supra, 184 N.J. at 77; Higgins v. Pascack Valley Hosp., 158 N.J. 404, 420 (1999); Abbamont, supra, 138 N.J. at 417.
CEPA defines an “employee” as
any individual who performs services for and under the control and direction of an employer for wages or other remuneration.
[N.J.S.A. 34:19-2(b).]
The question is who is included in that definition. As the Appellate Division noted, the definition does not exclude, explicitly, persons who are designated as independent contractors performing services for an employer for remuneration. See footnote 6 D’Annunzio, supra, 383 N.J. Super. at 279. It is beyond cavil that it includes more than the narrow band of traditional employees. In Feldman, supra, 187 N.J. at 241, when we considered the term’s application in the context of a shareholder-director of a professional corporation, we specifically instructed courts to “look to the goals underlying CEPA and focus not on labels but on the reality of plaintiff’s relationship with the party against whom the CEPA claim is advanced.” See also MacDougall v. Weichert, 144 N.J. 380, 388 (1996) (emphasizing same for Pierce wrongful discharge claim).
Our courts have long recognized that, in certain settings, exclusive reliance on a traditional right-to-control test to identify who is an “employee” does not necessarily result in the identification of all those workers that social legislation seeks to reach. As was aptly described by former Judge Conford in a dissent that later was relied on by this Court,
while some measure of control is essential to a finding of an employer-employee relationship, there are various situations in which the control test does not emerge as the dispositive factor. For example, where it is not in the nature of the work for the manner of its performance to be within the hiring party’s direct control, the factor of control can obviously not be the critical one in the resolution of the case, but takes its place as only one of the various potential indicia of the relationship which must be balanced and weighed in determining what, under the totality of the circumstances, the character of that relationship really is. Thus, the requirement of control is sufficiently met where its extent is commensurate with that degree of supervision which is necessary and appropriate, considering the type of work to be done and the capabilities of the particular person doing it. Patently, where the type of work requires little supervision over details for its proper prosecution and the person performing it is so experienced that instructions concerning such details would be superfluous, a degree of supervision no greater than that which is held to be normally consistent with an independent contractor status might be equally consistent with an employment relationship. In such a situation the factor of control becomes inconclusive, and reorientation toward a correct legal conclusion must be sought by resort to more realistically significant criteria.
[Marcus v. E. Agric. Ass’n, Inc., 58 N.J. Super. 584, 597 (App. Div. 1959) (Conford, J., dissenting) (internal citations omitted), rev’g on dissent, 32 N.J. 460 (1960).]
Taken out of context, labels can be illusory as opposed to illuminating. See footnote 7 When CEPA or other social legislation must be applied in the setting of a professional person or an individual otherwise providing specialized services allegedly as an independent contractor, we must look beyond the label attached to the relationship. The considerations that must come into play are three: (1) employer control; (2) the worker’s economic dependence on the work relationship; and (3) the degree to which there has been a functional integration of the employer’s business with that of the person doing the work at issue. See Lowe v. Zarghami, 158 N.J. 606, 615-18 (1999). The test for determining those aspects of a non-traditional work relationship was set out in Pukowsky and we have already indicated our acceptance of that test as appropriate for CEPA purposes.
In Feldman, supra, in which our dissenting colleague joined, we referenced Pukowksy as the standard for determining the independent-contractor status of an individual claiming entitlement to bring a CEPA action. 187 N.J. at 242.
In Pukowsky, the Appellate Division identified twelve factors to be considered when determining whether a plaintiff qualifies as an employee for purposes of the New Jersey Law Against Discrimination (LAD):
(1) the employer’s right to control the means and manner of the worker’s performance; (2) the kind of occupation -- supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the “employer;” (10) whether the worker accrues retirement benefits; (11) whether the “employer” pays social security taxes; and (12) the intention of the parties.
[312 N.J. Super. at 182-83 (quoting Franz v. Raymond Eisenhardt & Sons, Inc.,
732 F. Supp. 521, 528 (D.N.J. 1990)).]
The Pukowsky test is a hybrid that reflects the common law right-to-control test,
see Restatement (Second) of Agency, § 220 (1957) (setting forth control test for assessing
whether master-servant relationship is established under common law agency principles creating liability obligations),
and an economic realities test, Pukowsky, supra, 312 N.J. Super. at 182-83.
The Pukowsky test focuses heavily on work-relationship features that relate to the employer’s
right to control the non-traditional employee, and allows for recognition that the requisite
“control” over a professional or skilled person claiming protection under social legislation may
be different from the control that is exerted over a traditional employee. An
employer cannot be expected to exert control over the provision of specialized services
that are beyond the employer’s ability. Yet, the work may be an essential
aspect of the employer’s regular business.
Therefore, the test further allows for examination of the extent to which there
has been a functional integration of the employer’s business with that of the
person doing the work. Several questions elicit the type of facts that would
demonstrate a functional integration: Has the worker become one of the “cogs” in
the employer’s enterprise? Is the work continuous and directly required for the employer’s
business to be carried out, as opposed to intermittent and peripheral? Is the
professional routinely or regularly at the disposal of the employer to perform a
portion of the employer’s work, as opposed to being available to the public
for professional services on his or her own terms? Do the “professional” services
include a duty to perform routine or administrative activities? If so, an employer-employee
relationship more likely has been established.
Finally, the test includes consideration of the worker’s economic dependence on the employer’s
work, but does not insist on the same financial indicia one might expect
to be present in the case of a traditional employee, such as the
payment of wages, income tax deductions, or provision of benefits and leave time.
Workers who perform their duties independently may nevertheless require CEPA’s protection against retaliatory
action when they speak against or refuse to participate in illegal or otherwise
wrongful actions by their employer. Such individuals should benefit from CEPA’s remedies. Moreover,
CEPA’s deterrent function would be undermined if such individuals were declared ineligible for
its protection. The public at large benefits from a less restricted approach to
who may sue under CEPA as an employee of a business enterprise. It
is unlikely to us that the Legislature meant to sanction a restricted approach
to CEPA’s reach.
III.
A reasonable application of CEPA’s definition of “employee” should include adjustment for the
modern reality of a business world in which professionals and other workers perform
regular or recurrent tasks that further the business interests of the employer’s enterprise,
notwithstanding that they may receive remuneration through contracts instead of through the provision
of wages and benefits. Therefore, in order that CEPA’s scope fulfill its remedial
promise, the test for an “employee” under CEPA’s coverage must adjust to the
specialized and non-traditional worker who is nonetheless integral to the business interests of
the employer. We reaffirm that the Pukowsky test fulfills that purpose. The test
is familiar and addresses most routine questions in respect of the status of
an individual as either an independent contractor or employee. It also offers consistency
because the test is known and has been subject to general application. See,
e.g., Kounelis v. Sherrer,
396 F. Supp.2d 525, 532-33 (D.N.J. 2005) (applying
Pukowsky’s factors in CEPA action by inmate claiming “employee” status).
In this matter, the trial court and Appellate Division resorted to the Pukowsky
criteria when addressing D’Annunzio’s status under CEPA with differing outcomes. D’Annunzio, supra, 383
N.J. Super. at 294-97. The Appellate Division concluded that the trial court erred
when it granted summary judgment to defendants because the court did not properly
weigh the factors in the light of a professional services work relationship. The
panel emphasized the importance of “the employer’s ‘control and direction’ of the worker’s
performance of services for the employer . . . .” Id. at 277,
283 (highlighting Pukowsky factors one, two, four, and seven). Accordingly, it focused on
factors that examine the nature of the employer’s right to control the work
of a licensed professional, such as D’Annunzio –- not the right to control
the outcome, but rather to manage how that work is performed for the
purposes of the employer’s business operations. Id. at 283. The panel also attributed
less weight than did the trial court to those factors that would produce
evidence of traditional employee status, when applicable, such as payment of wages and
benefits. Ibid.
We agree with the emphasis in the Appellate Division’s analysis and add that
the Pukowsky test also appropriately examines the relationship to determine whether the professional’s
services have been incorporated into the work of the business (factor nine), and
looks at the impact of that work relationship on the professional’s ability to
offer his or her services to the public (the overall economic realities of
the relationship beyond method of payment and provision, or not, of benefits and
leave). As to the former, one cannot help but note that D’Annunzio’s treatment
plan review function was an integral, indeed essential, aspect of Prudential’s PIP Department’s
operations. Although Prudential may not have told him whether to approve or disapprove
individual claims, the whole overlay of expectations placed on D’Annunzio made him a
necessary part in its day-to-day operations. We glean that from the demand for
his physical presence for half of the entire business workweek, spread over every
business day, ensuring not only his professional discretionary judgment on individual cases, but
also his ready availability to other professionals performing tasks for Prudential for consultation
and educational purposes.
Moreover, D’Annunzio presented evidence that, although designated an independent contractor in his agreement
with Prudential (a matter that we view as informative but not dispositive because
the designation was stated by the parties to be for a purpose unrelated
to CEPA’s interests), his day-to-day activities were controlled in minute detail. The step-by-step
instructions provided to him set forth every single particular as to how to
review a claim, including direction on how much information to provide in his
written reviews. Although that is not to say that a professional cannot be
told to be succinct without converting him to the status of an employee
under CEPA, D’Annunzio certainly can argue that he was essentially under the control
of Prudential and that he was a veritable “cog” in the PIP Department’s
operations.
D’Annunzio’s time spent at Prudential’s operations was continuous, week to week, and daily,
for a substantial period of time during business hours. That Prudential exacted a
not-inconsequential amount of time from him, on its premises, caused D’Annunzio to be
away from attending to his private practice. The impact on D’Annunzio cannot be
said to be minor. Moreover, his duties included numerous administrative tasks, all to
be performed in accordance with protocols devised by Prudential to meet their business
plan for the review and approval of PIP treatment plans. In fact, all
of the detailed requirements expected of D’Annunzio were in furtherance of Prudential’s operation.
In sum, D’Annunzio pointed to many facts that support the creation of an
employment relationship for CEPA purposes, notwithstanding that his agreement described him as an
independent contractor. Therefore, and in view of the premature stage of these proceedings
and the truncation of discovery, we agree with the Appellate Division panel that
reversed the entry of summary judgment for Prudential and remanded the matter to
the Law Division. In affirming the panel’s judgment, we intend to express no
opinion whatsoever on the merits of the substance of D’Annunzio’s claimed CEPA violations.
IV.
The judgment of the Appellate Division is affirmed as modified and the matter is remanded to the trial court.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, ALBIN, and WALLACE join in JUSTICE LaVECCHIA’s opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion. JUSTICE HOENS did not participate.
SUPREME COURT OF NEW JERSEY
A-
119 September Term 2005
GEORGE D'ANNUNZIO, D.C.,
Plaintiff-Respondent,
and
GEORGE D’ANNUNZIO, D.C., PROFESSIONAL ASSOCIATION,
Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, ART RYAN,
CHIEF EXECUTIVE OFFICER OF PRUDENTIAL, ROGER DEJARON, CHIEF OPERATIONS OFFICER OF PRUDENTIAL, FRANKLIN
BAGGETT, VICE PRESIDENT OF PRUDENTIAL PIP CLAIMS, TONY LOCASTRO, DIRECTOR OF PIP FOR
PRUDENTIAL, LINDA FRAISTAT, NEW JERSEY PIP UNIT, UNIT MANAGER FOR PRUDENTIAL, FRANK HRUSKA,
PIP OPERATIONS MANAGER FOR PRUDENTIAL and KATHY SAVVAS, CLAIMS SUPERVISOR FOR PRUDENTIAL,
Defendants-Appellants,
and
TOM MOONEY, PRESIDENT OF FIRST MANAGED CARE OPTIONS, FIRST MANAGED CARE OPTIONS, JOHN
DOES 1-100 (said names being fictitious), JANE DOES 1-100 (said names being fictitious)
and ABC CORPORATIONS 1-100 (said names being fictitious),
Defendants.
JUSTICE RIVERA-SOTO, dissenting.
The
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, protects employees from
enumerated retaliatory acts by their employers. Specifically, Section 3 of CEPA provides that
“[a]n employer shall not take any retaliatory action against an employee because the
employee” engages in whistle-blowing activity. N.J.S.A. 34:19-3 (emphasis supplied). It provides remedies to
“an aggrieved employee or former employee
,”
N.J.S.A. 34:19-5, and imposes on employers the
duty to “conspicuously display, and annually distribute to all employees written or electronic
notices of its employees’ protections, obligations, rights and procedures under [CEPA], and use
other appropriate means to keep its employees so informed[,]” N.J.S.A. 34:19-7.
In Section 2(b) of CEPA, N.J.S.A. 34:19-2(b), the Legislature defined an “employee” entitled
to CEPA’s protection as “any individual who performs services for and under the
control and direction of an employer for wages or other remuneration.” Acknowledging that
“[t]he question here is who is included in that definition[,]” ante, ___ N.J.
___ (slip op. at 3), the majority concludes that, “in view of the
premature stage of these proceedings and the truncation of discovery,” ante, at ___
(slip op. at 21),
See footnote 8
D’Annunzio may qualify as an “employee” under CEPA and,
hence, the summary judgment entered in Prudential’s favor by the trial court should
be reversed. For two independent reasons, I respectfully dissent.
As a matter of statutory interpretation, there is no need to engage in the Pukowsky See footnote 9 analysis embraced by the majority. The requirement that a CEPA claimant be a defined “employee” -- as opposed to an “independent contractor” -- was imposed by the Legislature, not by judicial fiat. In that context, our role is limited:
The “paramount [judicial] goal when interpreting a statute” is to determine and fulfill the legislative intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005). To achieve that goal, we first look to the statutory language, State v. Pena, 178 N.J. 297, 307 (2004), and interpret the language in accordance with its plain meaning if it is “‘clear and unambiguous on its face and admits of only one interpretation.’” State v. Thomas, 166 N.J. 560, 567 (2001) (quoting State v. Butler, 89 N.J. 220, 226 (1982)). If the statute’s language “‘is susceptible to different interpretations, the court considers extrinsic factors, such as the statute’s purpose, legislative history, and statutory context to ascertain the legislature's intent.’” Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 323 (2000) (quoting Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999)); see also DiProspero, supra, 183 N.J. at 492-93; State v. Pena, supra, 178 N.J. at 307-08.
[Thomsen v. Mercer-Charles,
187 N.J. 197, 206 (2006).]
We have summarized our task thusly: “When interpreting a statute or regulation, we
endeavor to give meaning to all words and to avoid an interpretation that
reduces specific language to mere surplusage.” DKM Residential Props. Corp. v. Twp. of
Montgomery,
182 N.J. 296, 307 (2005) (citing Franklin Tower One v. N.M.,
157 N.J. 602, 613 (1999); Norman J. Singer, 2A Sutherland Statutory Construction § 46:06, at
190-92 (6th ed. 2000)). See also Twp. of Holmdel v. N.J. Highway Auth.,
190 N.J. 74, 107-08 (2007) (Rivera-Soto, J., dissenting) (“When interpreting a statute, our
overriding goal must be to determine the Legislature’s intent. We have explained that
ordinarily, the language of the statute is the surest indicator of the Legislature’s
intent. When, as here, the language is plain and clearly reveals the meaning
of the statute, the court’s sole function is to enforce the statute in
accordance with those terms. We also consider the overall legislative scheme, because our
task is to harmonize the individual sections and read the statute in the
way that is most consistent with the overall legislative intent.” (citations, internal quotation
marks, and editing marks omitted)).
An application of that canon of construction leads inexorably to the conclusion that
the Legislature is no stranger to the differences between an employee and an
independent contractor; it has repeatedly made a distinction between the two. Thus, in
those instances when the Legislature has seen fit to do so, it has
made the terms “employee” and “independent contractor” synonymous. See, e.g., N.J.S.A. 12A:3-405(a)(1) (providing
that, in respect of employer’s responsibility for forged endorsements on negotiable instruments, “‘[e]mployee’
includes an independent contractor and employee of an independent contractor retained by the
employer”); N.J.S.A. 17B:27A-17 (defining, for health insurance benefit purposes, “[e]ligible employee” to “include[]
. . . an independent contractor, if the . . . independent contractor
is included as an employee under a health benefits plan of a small
employer”); N.J.S.A. 34:15-3 (providing, for purposes of Workers’ Compensation Act, N.J.S.A. 34:15-1 to
-69.3, that “[i]f an employer enters into a contract, written or verbal, with
an independent contractor to do part of such employer’s work . . .
such contract . . . shall not bar the liability of the employer
for injury caused to an employee of such [independent] contractor”); N.J.S.A. 46:2F-10(d)(4) (exempting,
from Rule Against Perpetuities, transfers to “current or deferred benefit plan[s] for one
or more employees, independent contractors, or their beneficiaries or spouses”); N.J.S.A. 54:32B-2(i)(1)(C) (defining,
for purposes of Sales and Use Tax Act, N.J.S.A. 54:32B-1 to –43, “seller”
as “[a] person who solicits business either by employees, independent contractors, agents or
other representatives”).
Indeed, a recent legislative enactment underscores the Legislature’s recognition of the differences between
employees and independent contractors and the steps the Legislature undertakes when it wishes
to equate them. In the Construction Industry Independent Contractor Act, L. 2007, c.
114, § 4 (eff. July 13, 2007), the Legislature provided that “services performed in
the making of improvements to real property by an individual for remuneration paid
by an employer [as statutorily defined] shall be deemed to be employment unless
and until it is shown” what an independent contractor status –- as defined
in the statute –- exists. Illustrative of the importance the Legislature ascribes to
the distinction between employees and independent contractors, that Act also provides for civil
and criminal penalties if an employer misclassifies construction workers as independent contractors. Id.
at §§ 5-7. Thus, the proposition that the Legislature is fully cognizant of how
to -- and entirely able to -- treat “employees” and “independent contractors” as
fungible terms admits of no serious dispute.
In contrast, the Legislature has acknowledged the difference between employees and independent contractors
and, where it has discerned a need to do so, it has not
hesitated to explicitly differentiate between them. See, e.g., N.J.S.A. 17B:32-89(a)(2) (exempting from immunity
from liability granted to receivers and their employees under Life and Health Insurers
Rehabilitation and Liquidation Act, N.J.S.A. 17B:32-31 to -91, those “retained by the receiver
as independent contractors and their employees”); N.J.S.A. 34:1B-113 (providing, under Business Retention and
Relocation Assistance Act, N.J.S.A. 34:1B-112 to -123, that “‘[f]ull-time employee’ shall not include
any person who works as an independent contractor or on a consulting basis
for the business”); N.J.S.A. 34:1B-125 (providing, under Business Employment Incentive Program Act, N.J.S.A.
34:1B-124 to -143, that “‘[f]ull-time employee’ shall not include any person who works
as an independent contractor or on a consulting basis for the business”); N.J.S.A.
34:11-4.1(b) (defining, under Wage Payment Law, N.J.S.A. 34:11-2 to -33.6, “[e]mployee” as “any
person suffered or permitted to work by an employer, except that independent contractors
and subcontractors shall not be considered employees”); N.J.S.A. 40A:10-1(c) (providing that local governmental
unit may purchase insurance for its negligence or that of those “authorized to
perform any act or services, but not including an independent contractor”); N.J.S.A. 40A:10-6(c)
(providing that local governmental unit may establish insurance fund for its negligence or
that of those “authorized to perform any act or services, but not including
an independent contractor”); N.J.S.A. 40A:14-38 (providing that fire district may purchase insurance for
negligence of its fire volunteers “authorized to perform any act or service, but
not including an independent contractor”); N.J.S.A. 42:1A-53(a)(5) (providing, under Uniform Partnership Act, N.J.S.A.
42:1A-1 to -56, that foreign limited liability partnership engaged in selling through independent
contractors is not engaged in transacting business in New Jersey sufficient to trigger
qualification requirements); N.J.S.A. 43:21-19(i)(7)(Z) (exempting from definition of “employment” under unemployment compensation scheme
“outside travel agent, who acts as an independent contractor”); N.J.S.A. 59:1-3 (specifically excluding,
for purposes of Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, independent contractor from
defined term “employee”).
Also, when it has deemed it appropriate, the Legislature has specifically defined the
term “independent contractor” without regard to any concept of employment. See N.J.S.A. App.
A:9-79, A9-80, A9-82, A9-83, A:9-84 (eff. Sept. 15, 2007) (comprehensively defining, for domestic
security purposes, “[i]ndependent contractor” as “a person, firm, company or organization which enters
into a contract to work within, supply or deliver materials to a designated
facility [defined, by N.J.S.A. 13:1K-21, as a ‘building, equipment, and contiguous area’] and
whose employees have physical access to a designated facility”).
In other instances and in a wide variety of contexts, the Legislature has
used the term “independent contractor” without any particular definition, further acknowledging both its
meaning separate and apart from, and its differences with, the term “employee.” See,
e.g., N.J.S.A. 2A:53A-7 (immunity from liability for negligence); N.J.S.A. 2C:20-11(a)(4) (definitions of shoplifting);
N.J.S.A. 2C:21-6.1(a)(1) (definitions relative to scanning devices, etc.); N.J.S.A. 4:4-20.3(r) (definitions under Commercial
Feed Law); N.J.S.A. 13:12-22 (retention of legal and administrative help by Morris Canal);
N.J.S.A. 14A:13-15(b) (notice of business activities report by foreign business corporations); N.J.S.A. 17:47A-2
(definitions under Risk Retention Act, N.J.S.A. 17:47A-1 to -12); N.J.S.A. 17B:30B-12(i)(1) (fraudulent viatical
settlements); N.J.S.A. 27:7-11 (maintenance of state highways); N.J.S.A. 27:7-21 (powers of commissioner to
acquire, construct, and maintain state highways); N.J.S.A. 30:4-98(l) (authorizing State Board of Human
Services to act as independent contractor using “the labor of . . .
inmates . . . within its jurisdiction”); N.J.S.A. 30:4D-17.1 (suspension or disqualification of
Medicaid providers); N.J.S.A. 30:13-16 (review of Medicaid recipient by independent contractor); N.J.S.A. 32:8-3(g)
(post-employment restriction on former members of Delaware River Joint Toll Bridge Commission extends
to independent contractor status); N.J.S.A. 32:23-26 (forbidding unlicensed independent contractors from loading or
unloading waterborne freight); N.J.S.A. 34:6-136.2(d) (defining, for purposes of Home Work Law, N.J.S.A.
34:6-120 to -136.23, “employer” to “mean[] any person, including any independent contractor, who,
directly or indirectly or through any employee, agent, independent contractor, subcontractor, or any
other person” distributes, delivers, or sells “materials or articles manufactured within this State
in a home”); N.J.S.A. 34:6-136.7(c) (barring independent contractors from permits under Home Work
Law); N.J.S.A. 34:6-136.11 (requiring records of transactions with independent contractor); N.J.S.A. 39:2A-32 (requiring
fingerprints and criminal history checks of independent contractors working on Motor Vehicle Commission
premises); N.J.S.A. 39:4-50 (immunizing independent contractors retained by court in driving while intoxicated
matters); N.J.S.A. 42:1A-10(c)(3)(b) (rebutting partnership presumption of providing services as independent contractor); N.J.S.A.
45:7-65.3(a)(2) (prohibiting solicitation of mortuary services by independent contractors at eldercare facilities); N.J.S.A.
45:17A-20 (defining, for purposes of Charitable Registration and Investigation Act, N.J.S.A. 45:17A-18 to
-40, “[c]ommercial co-venturer” to include independent contractor); N.J.S.A. 48:3-56(f)(1) (requiring board of public
utilities to hire independent contractor to perform audits of electric public utilities); N.J.S.A.
48:3-58(k)(1) (requiring board of public utilities to hire independent contractor to perform audits
of gas public utilities); N.J.S.A. 52:14B-4(f) and (g) (allowing director of Office of
Administrative Law to assign independent contractor to conduct public hearing); N.J.S.A. 52:18A-214 (authorizing
Departments of the Treasury and State to contract with independent contractors for restoration,
repair, maintenance, and operation of Trenton War Memorial); N.J.S.A. 52:27EE-36 and -43 (exempting,
under Public Advocate Restoration Act of 2005, N.J.S.A. 52:27EE-1 to -85, independent contractors
providing mental health or developmentally disabled advocacy from Tort Claims Act immunity); N.J.S.A.
52:32-33(a) (defining, for purposes of New Jersey Prompt Payment Act, N.J.S.A. 52:32-32 to
-39, “[b]usiness concern” to include “independent contractors[] providing goods or services directly to
a using agency or to a designated third party and operating pursuant to
a State contract”).
The brute force of those disparate statutory provisions is clear: the Legislature can
and repeatedly does set forth when it wishes its reach to cover independent
contractors and when it does not.
In that context, CEPA is illustrative of how the Legislature acts when it
does not wish to equate “independent contractors” with “employees.” When the Legislature has
chosen to eliminate any distinctions between “employees” and “independent contractors” it has displayed
no reticence or difficulty in doing so. Yet, it cannot be disputed that
CEPA protects employees and only employees. Against that backdrop, any extension of CEPA’s
reach is an unwarranted intrusion into the Legislature’s realm.
In the end, the majority’s interpretation of CEPA’s definition of an “employee” stretches
that definition to an unrecognizable –- and ultimately meaningless –- shape. Thus, as
a matter of statutory construction, CEPA should be interpreted in a manner true
to its legislative origins: as the Conscientious Employee Protection Act. Any further expansion
of its reach properly belongs to the Legislature.
Even if one accepts the majority’s interpretation of CEPA’s reach, See footnote 10 D’Annunzio is emblematic of how the majority’s construct goes badly astray. In this case, D’Annunzio, for his own purposes, negotiated with Prudential to provide certain services in exchange for a contractually agreed on hourly rate; he created a professional corporation to enter into that contract with Prudential; and he in fact entered into a written contract with Prudential. Section II of that contract, titled “Legal Relationship between the Medical Director and Prudential,” plainly states as follows:
The relationship between Prudential and [D’Annunzio] is that of independent contractor. The Medical Director will maintain his own private practice and provide Medical Director services on a part time basis. Prudential makes no representations as to the volume of referrals and [D’Annunzio] acknowledges [that] this agreement is not exclusive. None of the provisions of this agreement are intended to create or be construed as creating any agency, partnership, joint venture or employer-employee relationship.
As an independent contractor, [D’Annunzio] will have the sole responsibility for the payment of all self employment and applicable federal[,] state and local taxes.
[Emphasis supplied.]
Despite that clear language, D’Annunzio now claims that, because he was provided stationery
on which to write, because he was told the format in which reports
were to be prepared, and because he was asked to do what he
contracted in writing to do -- that Prudential would provide him “adequate working
space and necessary resources” and that he would “maintain office hours at the
Prudential PIP claims office[,] Monmouth Executive Center,
3 Paragon Way Bldg. 3[,] Freehold,
NJ 07728 from 8 am until 12 pm (Monday through Friday)” -- and
even though his contract with Prudential required that he maintain a separate, viable
private practice, somehow Prudential exercised sufficient “control and direction” over him to invoke
CEPA’s protections. That claim is legal gibberish.
The contract between D’Annunzio and Prudential could not have been clearer. D’Annunzio contracted
to perform professional services on a part-time basis for Prudential. For his own
economic purposes, D’Annunzio insisted on Prudential contracting for his services through his professional
corporation. By his own design, then, D’Annunzio was an employee of his own
professional corporation, while his professional corporation was an independent contractor to Prudential. That
contract made clear that the relationship between the parties was one of an
independent contractor (D’Annunzio, through his professional corporation) providing services to Prudential. Yet, when
it suits his purpose in seeking to invoke CEPA’s protections, D’Annunzio readily renounces
all that he bargained for in exchange for a chance at a recovery
under CEPA.
CEPA represents all of the salutary goals and aspirations the majority eloquently describes.
It is, as the majority notes, “remedial social legislation designed to promote two
complimentary public purposes: to protect and [thereby] encourage employees to report illegal or
unethical workplace activities[,] and to discourage public and private sector employers from engaging
in such conduct.” Ante, at ___ (slip op. at 9-10) (citations and internal
quotation marks omitted). However, when we pervert its intendment solely to extend its
reach to one who proudly wears the mantle of an independent contractor when
it is convenient to him -- only to shed it for the greener
pastures of a hoped-for litigation recovery -- we devalue CEPA’s worth and cheapen
its meaning. Prudential negotiated its contract with D’Annunzio in good faith, and Prudential
abided by all of the contract’s terms, including its termination on notice provisions.
In those circumstances, D’Annunzio should be required to abide by the terms of
the contract -- the basis of the bargain -- he knowingly, intelligently, and
intentionally negotiated, not rewarded with a breath of renewed life to this rightly
defunct claim.
For the foregoing reasons, I would reverse the judgment of the Appellate Division and reinstate the judgment of the trial court that dismissed D’Annunzio’s complaint. Therefore, I respectfully dissent.
SUPREME COURT OF NEW JERSEY
NO. A-119 SEPTEMBER TERM 2005
ON CERTIFICATION TO Appellate Division, Superior Court
GEORGE D’ANNUNZIO, D.C.,
Plaintiff-Respondent,
And
GEORGE D’ANNUNZIO, D.C.,
PROFESSIONAL ASSOCIATION,
Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY
OF AMERICA, et al.,
Defendants-Appellants.
DECIDED July 25, 2007
Chief Justice Zazzali PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Rivera-Soto
CHECKLIST
Footnote: 1
Pukowsky v. Caruso,
312 N.J. Super. 171 (App. Div. 1998).
Footnote: 2
N.J.S.A. 39:6A-3.1(a) allows an insured to elect an automobile insurance policy with
PIP coverage and authorizes the insurer to review an insured’s or other covered
person’s request for “reasonable and necessary treatment” for medical necessity. PIP insurers respond
to requests for proposed treatment or testing at “decision points,” which is part
of the process of an insurer’s “decision point review.” N.J.A.C. 11:3-4.7 (requiring insurers
to maintain “decision point review plan”); <