Wednesday, April 9, 2014

Leave Granted in Labor Law 240(1) Billboard Fall Claim

The Court of Appeals just granted leave to appeal in Saint v. Syracuse Supply Co., where the plaintiff was injured in a fall on an elevated billboard (he fell from one level of the billboard to a catwalk, but not completely off of the billboard). The Fourth Department dismissed the plaintiff's Labor Law § 240(1) claim, concluding that he was in the process of applying a new advertisement to the face of a billboard, and that his work was essentially cosmetic, which would not constitute a Labor Law protected activity. The plaintiff unsuccessfully asked the Fourth Department to grant leave, but the Court of Appeals has now agreed to hear the matter.

The plaintiff argued to the Court of Appeals that his job entailed changing the “structure” of the billboard by adding metal and wood extensions to the board as part of a project to attach a new vinyl advertisement. He further argued that, in light of the fact that his work constituted an “alteration” of the billboard, the Fourth Department decision appeared to impermissibly apply a ‘per se’ exclusion of billboard changing from the Labor Law. The defendant responded that the Fourth Department correctly applied the Court of Appeals’ prior precedent in Munoz v. DJZ Realty, LLC., in which the Court of Appeals concluded that pressing a pre-glued sheet to a billboard face, even to cover a billboard that was that was 12 feet by 24 feet in size, did not constitute a Labor Law protected activity. Here, the defendant alleged that application of the billboard face included the so-called “extension,” and that there was no “alteration” of the structure itself.

The New York State Trial Lawyers Association has already obtained status as amicus on the appeal.

Wednesday, March 19, 2014

Security Guard's Acts Found to Be Outside The Scope of His Employment

In Ali v. State of New York, the claimant was standing in the waiting area of the New York State Workers' Compensation Board when he overheard a nearby security guard talking on a cell phone.  The security guard apparently learned of his grandmother's death and in reaction to the news he punched a wooden bench, causing it to strike and injure the claimant for which the claimant sued the State.  After trial, the Court of Claims granted the State's application to dismiss the claim and on appeal by the claimant the Second Department affirmed.  The Court found that the security guard was acting solely for personal motives unrelated to the State's business, and therefore the State could not be held vicariously liable for the security guard's actions.  The Court further found that the claimant failed to demonstrate that the guard's conduct was reasonably foreseeable to the State.   

First Department Holds Plaintiff's Use of A-frame Ladder In Closed Position Not Sole Proximate Cause

In Fernandez v. 213 E. 63rd St. LLC, the First Department affirmed partial summary judgment on liability in favor of plaintiff pursuant to Labor Law 240(1), where plaintiff testified that the A-frame ladder he was using "kicked out," causing him to fall.  The Court further found that, even if the defendants had presented sufficient evidence to create a question of fact as to whether the plaintiff was using the ladder in a closed position, such evidence was not sufficient to defeat the plaintiff's motion.  More specifically, the Court found that the defendants had failed to demonstrate that the plaintiff was instructed to not use the ladder in that manner (which is generally only relevant to a "recalcitrant worker" defense).  

Tuesday, March 18, 2014

Court of Appeals Finds Questions of Fact Exist As to Possible "Special Relationship" Between Insurance Broker and Its Client

In Voss v. Netherlands Ins. Co., the plaintiff sued her insurance broker alleging they negligently secured inadequate levels of coverage for her businesses.

Plaintiff Voss met with defendant CHI, who calculated $75,000 per incident would be sufficient coverage for her businesses, and that the amount would be reassessed and checked each year in the event it became necessary to increase the coverage.  In 2006, plaintiff purchased a new building for her businesses that contained more space that would house two additional ventures.  Defendant renewed the $75,000 policy, even though it included more businesses and more square footage.  Roof leaks occurred in 2007 that put a stop to business operations and required contract work.  A month later the roof failed, causing extensive water damage and all of the businesses to temporarily shut down.  While these incidents were treated separately, payments were delayed and never fully paid.  Meanwhile in also in 2007, CHI proposed reducing the plaintiff's insurance from $75,000 to $30,000.  Plaintiff questioned this and the CHI representative agreed to “take a look at it.”  However, the plaintiff did not follow up and the $30,000 coverage made it into the final plan.  The roof then failed a third time in 2008, causing further damage and interruption of plaintiff’s businesses. 

CHI moved for summary judgment, which was granted by the Supreme Court, who agreed that no special relationship existed, that if such a relationship existed then any breach was not a proximate cause of the plaintiffs injuries and that a negligence claim against CHI failed because plaintiff admitted that she was aware of what policies she had throughout the process.  The Appellate Division affirmed, although disagreeing with the Supreme Court on the special relationship issue.

The Court of Appeals granted leave and reversed.  The Court explained that looking at the facts in the light most favorable to the nonmoving party, the plaintiff,  there was a significant triable issue of fact in regards to the special relationship between the parties.  This was because “there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent.”  Since the plaintiff relied on the insurance broker’s assurances that the coverage was enough and that it would be continually reviewed to determine if it was still adequate, it is possible a special relationship, although not yet proven, could be proven at trial.  

As for the other grounds that the Appellate Division found satisfactory for dismissal, the Court of Appeals found it “wholly irrelevant whether plaintiffs were aware of the limits that were actually procured” and stated that issues like proximate cause and foreseeability “should generally be resolved by the fact finder.”  As such, summary judgment was denied.

Judge Smith dissented, agreeing with the majority that the issue was about special relationships, but finding that no such relationship existed.  He found that despite the fact that the plaintiff solicited advice when she moved her business and renewed her coverage, plaintiff never actually received advice from the defendant.  Judge Smith emphasized that while the defendant did not have great client service, this was not a reason to classify the plaintiffs interaction with them as a special relationship.  Furthermore, he discussed policy reasons against blaming insurance agents, including the fact that brokers earn very "modest" commissions and should not be made to be "back-up insurers" for their clients' losses.

Monday, March 17, 2014

Insurer Rebuffed In Its Attempt to Latch Subrogation Claim Onto Plaintiff's Tort Action

In Peterson v. New York State Elec. & Gas Corp., the plaintiffs were injured when their home exploded due to a natural gas leak that also destroyed a neighboring mechanic's shop, Pete's Garage. Erie Insurance Company, the insurer for Pete's Garage, paid its insured approximately $50,000 for damages sustained in the explosion.  The plaintiffs sued NYSEG, but Erie failed to intervene in the action or to commence its own action against NYSEG. Instead, Erie moved to sever its subrogation claim from the plaintiffs' personal injury claim.  

In affirming the denial of the motion, the Third Department found that Erie had two options: (1) commence its own action against NYSEG or (2) move to intervene in an action between Pete's Garage and NYSEG. Here, however, the action was between the Petersons, not Pete's Garage, and NYSEG. Moreover, the plaintiffs' complaint failed to include any allegations regarding the damages to Pete's Garage and it was not until 5 years after service of the complaint that the plaintiffs amended their bill of particulars to mention the sums paid by Erie for the Pete's Garage claim.  The Court found that the amendment was ineffective to assert Erie's subrogation claim, in that an amendment to a bill of particulars cannot be used to allege a new theory of liability not originally asserted in the complaint.      

Fall From "Bobcat" An Elevation-Related Risk, But Questions Exist As to Whether Worker Was Engaged In A Protected Activity

In Penaranda v. 4933 Realty, LLC, the plaintiff was helping to clear plywood from a nearby construction project.  He was positioned on a "bobcat" as a counterweight to the plywood on the forks of the bobcat.  He was injured when the rear wheels of the bobcat suddenly lifted, throwing him to the ground.  The First Department reinstated the plaintiff's Labor Law 240(1) claim, finding that his fall from the bobcat was the result of an elevation related risk.  The Court declined to grant judgment in plaintiff's favor, however, finding that a question of fact existed as to whether the plaintiff's work was "necessary and incidental" to or "an integral part" of the construction work.  

Worker Injured After Working Hours Was Not Entitled to Labor Law's Protections

In Feinberg v. Sanz, the plaintiff's decedent was employed as a helper on a building restoration project. After work hours, he apparently fell from a roof. Police and the managing agent noticed empty beer bottles on the roof when they arrived and an autopsy found the decedent’s BAC at .20.  Apparently, the overwhelming majority of testimony indicated that the site had been shut down for several hours. The only evidence to the contrary was hearsay from the decedent’s widow. The Appellate Division affirmed the dismissal of plaintiff's Labor Law 240 and 241(6) claims because the decedent was not engaging in a Labor Law activity by being on the site after it had been shut down for the night.  As to section 200, the Appellate Division held that the decedent was the sole-proximate cause of his accident, not because he was intoxicated, but because the absence of a safety device could not have been a proximate cause of the accident since the accident happened after work hours.  

The holding as to plaintiff's section 200 claim raises the question, had the accident occurred during work hours, would the decedent's intoxication nevertheless have been the sole proximate cause of his accident?