Cline v. Avery Abrasives, Inc.

• Decision Date: 25 September 1978
• Court: New York Supreme Court
• Parties: Robert H. CLINE, Plaintiff, v. AVERY ABRASIVES, INC., Grinding Supply, Inc., Chicago Pneumatic Tool Company, Haverstick & Co., Inc., Hartford Accident & Indemnity Co., Defendants.

Page 91

409 N.Y.S.2d 91

96 Misc.2d 258

Robert H. CLINE, Plaintiff, v. AVERY ABRASIVES, INC., Grinding Supply, Inc., Chicago Pneumatic Tool Company, Haverstick & Co., Inc. Hartford Accident & Indemnity Co., Defendants.

Supreme Court, Monroe County.

Sept. 25, 1978.

Vincent F. Nolan, Rochester, for plaintiff.

Palmiere, Passero & Crimi, Rochester, for defendant Hartford Acc. & Indem. Co.; Dominic Pellegrino, Rochester, of counsel.

DECISION

DAVID O. BOEHM, Justice:

The issue on this motion for summary judgment is apparently one of first impression in New York and raises the question of whether an employee who is injured in the course of his employment may maintain a common law action for negligence against his employer's workmen's compensation insurance carrier for negligent inspection. The answer, of course, depends on whether the insurance carrier is cloaked with the same immunity from suit as the employer under the Workmen's Compensation Law.

The pertinent facts are undisputed. Plaintiff, Robert H. Cline, while grinding filet welds at Pfaudler Company where he was employed, sustained serious facial injuries and the loss of vision in his left eye when the abrasive wheel on the portable hand grinder he was using shattered.

A compensation claim was filed and defendant, Hartford Accident & Indemnity Co., (hereinafter Hartford), Pfaudler's compensation carrier, commenced compensation insurance payments retroactive to the date of the accident. Ultimately, plaintiff was awarded and paid a total of $13,067 over a 160-week period for loss of vision in his left eye and $3500. for serious facial disfigurement.

Thereafter, plaintiff commenced the present personal injury action against Hartford, among others, alleging that Hartford conducted periodic safety inspections of the Pfaudler plant and equipment and that these inspections were conducted in the presence of and in association with the employer's personnel.

Among other allegations of negligence, plaintiff claims that Hartford failed to make reasonable inspections to observe and report unsafe conditions and to warn of the defects and hazards involving the use of the abrasive wheel and portable grinder, including the fact that it was not equipped with a safety guard or other appropriate safety devices.

Hartford is now moving for summary judgment to dismiss the complaint on the ground that a workmen's compensation carrier is not "another not in the same employ" within the meaning of New York's Workmen's Compensation Law, § 29, subdivision 1, which provides:

"If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in the case of his death, his dependents, need not elect whether to take compensation and medical benefits under this chapter or to pursue his remedy against such other but may take such compensation and medical benefits and at any time either prior thereto or within six months after the awarding of compensation or within nine months after the enactment of law or laws creating, establishing or affording a new or additional remedy or remedies, pursue his remedy against such other subject to the provisions of this chapter. . . ."

Hartford argues that, as the employer's alter ego, it is cloaked with the employer's immunity from common law tort under Workmen's Compensation Law, § 11, which provides that the employer's sole liability is to provide or secure compensation for an employee's disability or death, as follows:

"The liability of an employer . . . shall be exclusive and in place of any other liability whatsoever to such employee, his personal representatives, spouse, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death . . ."

Workmen's Compensation Law, § 29, subdivision 6, also provides that an employee's remedy under this chapter is exclusive.

"The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in (the) case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ."

In resolving the present motion there are two issues confronting the court; (1) whether the Workmen's Compensation Law poses a legal impediment to suit against a compensation carrier; and (2) if not, whether plaintiff has set forth a cause of action in negligence against Hartford.

While the issue of compensation carrier immunity has not been addressed in New York, other jurisdictions have already responded to it, and three avenues resolving this question can be discerned.

Several states have provided in their Workmen's Compensation laws that the employer and insurance carrier are to be similarly considered for most or all purposes, thereby immunizing the carrier, along with the employer, from common law liability. ¹

The Workmen's Compensation laws in most states, however, such as New York, have not directly addressed the issue and as a consequence the question of carrier immunity in these jurisdictions has been left for the courts to resolve. Here, there is a split of authority, with no clear majority for either position. The decisions have been based upon the court's analysis of the legislative intent and the public policy which it appeared was intended to be served.

As a result, the interpretations of what is substantially similar statutory language have gone both ways. Some have decided in favor of carrier immunity ² and others have concluded that in the absence of clear statutory language cloaking the carrier with the employer's immunity there is a manifest legislative intent that the carrier be treated the same as any other third party. ³

Because, the guideposts, although abundant, are conflicting, and with no guidance or direction from other New York case law, the question before this court is which direction to take. In deciding, it is necessary to emphasize that the question is not whether an injured employee should be permitted to sue his employer's compensation carrier in common law negligence but, rather, whether the New York legislative intent, as expressed in this state's Workmen's Compensation Law, is to cloak the carrier with the employer's immunity. In short, the decision must be based upon legislative, rather than judicial, policy.

Hartford's basic argument is that legislative intent, considered in the light of general statutory language and policy considerations, requires the holding that a compensation carrier must be equated in the statute with the employer and is therefore immune from common law liability (see, e. g., Johnson v. American Mut. Liability Ins. Co., 559 F.2d 382, 387, Supra ). Further, Hartford argues, the carrier should be immune from liability whether it is acting in a manner directly related to its contractual role as the compensation carrier, such as by paying claims, or whether its actions are ancillary to its contractual role, such as by making safety inspections.

It is the plaintiff's position that neither statutory language nor policy reasons compel a holding which would grant immunity to a compensation insurance carrier.

Under the New York Workmen's Compensation Law, the remedies of employees against employers and the benefits provided therein are exclusive (N.Y.Const., Art. I, § 18; Cifolo v. General Elec. Co., 305 N.Y. 209, 214-215, 112 N.E.2d 197, 200-201; Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 114 N.E. 795). The statute's primary purpose is to compensate an employee and his family from loss of wages and disability resulting from accidental injuries or death arising out of his employment regardless of fault (Matter of Goldberg v. 954 Marcy Corp., 276 N.Y. 313, 12 N.E.2d 311; Matter of Marhoffer v. Marhoffer, 220 N.Y. 543, 116 N.E. 379). The statute is liberally construed to effectuate this purpose (65 N.Y.Jur., Workmen's Compensation, § 55, at pp. 398-400, and cases cited therein), and, generally, a presumption operates in favor of the claimant (Matter of Wilson v. General Motors Corp., 298 N.Y. 468, 84 N.E.2d 781).

In construing the Workmen's Compensation Law, the Court of Appeals has stated that all parts of the statute must be considered together in order to ascertain legislative intent and to further the legislative purpose, the object being to avoid injustice and unintended effects (Juba v. General Bldrs. Supply Corp., 7 N.Y.2d 48, 53, 194 N.Y.S.2d 503, 507, 163 N.E.2d 328, 332; 65 N.Y.Jur., Workmen's Compensation, § 54, Supra ; see also, Essenfeld Bros. v. Hostetter, 14 N.Y.2d 47, 52, 248 N.Y.S.2d 45, 49, 197 N.E.2d 535, 539). This is especially so where the statutory language is ambiguous or unclear (Matter of Toomey v. N. Y. State Legislature, 2 N.Y.2d 446, 448, 161 N.Y.S.2d 81, 83, 141 N.E.2d 584, 586; Matter of Gawrys v. Buffalo Bolt Co., 302 N.Y. 312, 317, 98 N.E.2d 452, 456; Matter of Curtin v. City of New York, 287 N.Y. 338, 342, 39 N.E.2d 903, 905; Travelers Ins. Co. v. Padula Co., 224 N.Y. 397, 402-403, 121 N.E. 348, 351-352).

Turning to the relevant statutory provisions of the New York Workmen's Compensation Law, it is evident that the language is not unclear and not ambiguous and, therefore, leaves little room for interpretation by a court. The statutory definition of employer under Workmen's Compensation Law, § 2, subd. 3, as conceded by Hartford, does not include an insurance carrier.

" 'Employer,' Except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation having one or more persons in employment, including the state, a municipal corporation, fire district or other political subdivision of the state, and every authority or commission heretofore or hereafter continued or created by the public...