Fleming v. Graham

• Decision Date: 20 March 2008
• Docket Number: No. 41.,41.
• Citation: Fleming v. Graham, 10 NY3d 296, 886 N.E.2d 769, 857 N.Y.S.2d 8 (N.Y. 2008)
• Parties: Cedric FLEMING et al., Plaintiffs, v. Thomas GRAHAM et al., Defendants and Third-Party Plaintiffs-Respondents. Pin-Stripes Garment Services, LLC, Third-Party Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

886 N.E.2d 769

10 N.Y.3d 296

Cedric FLEMING et al., Plaintiffs, v.Thomas GRAHAM et al., Defendants and Third-Party Plaintiffs-RespondentsPin-Stripes Garment Services, LLC, Third-Party Defendant-Appellant.

No. 41.

Court of Appeals of New York.

March 20, 2008.

Baxter, Smith, Tassan & Shapiro, P.C., Jericho (Robert C. Baxter and Sim R. Shapiro of counsel), and Gregory Allen, for third-party defendant-appellant.

Mauro Goldberg & Lilling LLP, Great Neck (Barbara DeCrow Goldberg and Anthony F. DeStefano of counsel), and Marshall, Conway, Wright & Bradley, for defendants and third-party plaintiffs-respondents.

OPINION OF THE COURT

JONES, J.

The issue in this case is whether plaintiff's facial injuries constituted a "permanent and severe facial disfigurement" for purposes of qualifying as a "grave injury" under Workers' Compensation Law § 11.Under the facts of this case, we hold that they do not.

Following a collision between a van driven by a Pinstripes Garment Services, LLC employee and a school bus driven by an employee of Evergreen Bus Service, Inc., plaintiffCedric Fleming(a Pinstripes employee and passenger in the van) sustained multiple facial injuries resulting in scars on his forehead and right upper eyelid.Fleming sued Evergreen and its bus driver for negligence.Evergreen commenced a third-party action against Pinstripes for common-law indemnity and/or contribution pursuant to Workers' Compensation Law § 11 on the theory that Fleming sustained a "permanent and severe facial disfigurement."Pinstripes subsequently moved for summary judgment dismissing the third-party complaint on the ground that Fleming's injuries were not "grave."

Supreme Court denied Pinstripes' motion, concluding that questions of fact existed.The court relied on an unsworn report of the first-partydefendant's expert who opined that some of Fleming's scars could not be improved.The court also stated that Fleming's "numerous facial scars ... [were] plainly visible to the observer"(2005 N.Y. Slip Op. 30268[U], *8, 2005 WL 6090866).The Appellate Division affirmed, concluding that photographs of Fleming's face "did not clearly show that [his] facial scarring was not a severe facial disfigurement"(Fleming v. Graham,34 A.D.3d 525, 527, 824 N.Y.S.2d 376[2d Dept.2006]).We now reverse.

Absent an express indemnification agreement, or a "grave injury" as enumerated in Workers' Compensation Law § 11,^* an employer's liability for an employee's on-the-job injury is ordinarily limited to workers' compensation benefits (seeTonking v. Port Auth. of N.Y. & N.J.,3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133[2004]).Where a "grave injury" results, a primary defendant may commence a third-party action against the injured plaintiff's employer for common-law indemnification and/or contribution.This case requires us to articulate a standard for assessing claims of "permanent and severe facial disfigurement."

Our analysis begins and ends with the legislative goal of the Omnibus Workers' Compensation Reform Act of 1996, which enacted the third paragraph of section 11.Before 1996, first-partydefendants were free to implead an injured plaintiff's employer in a personal injury action for "unlimited contribution or indemnification"(Governor's Approval Mem., Bill Jacket, L. 1996, ch. 635, at 54).Allowing such unfettered third-party actions undermined the employer's reliance upon workers' compensation benefits as its exclusive liability.

The purpose of the 1996legislation was "to reduce costs for employers while also protecting the interests of injured workers"(Rubeis v. Aqua Club, Inc.,3 N.Y.3d 408, 415, 788 N.Y.S.2d 292, 821 N.E.2d 530[2004]).Section 11 thus serves to protect employers by barring third-party actions against them "except in extremely limited, defined circumstances"(Castro v. United Container Mach. Group,96 N.Y.2d 398, 402, 736 N.Y.S.2d 287, 761 N.E.2d 1014[2001][emphasis added];see alsoMinkowitz, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 64, Workers' Compensation Law§ 11, at 444["Section 11 was written with the obvious, deliberate intention of ensuring preservation of the concept of the Workers' Compensation Law being the employer's exclusive liability to its employees"]).The categories of grave injuries listed in section 11, providing the sole bases for a third-party action, "are deliberately both narrowly and completely described"; the list, both "exhaustive" and "not illustrative," is "not intended to be extended absent further legislative action"(Governor's Approval Mem.at 55[emphasis added]).

What constitutes "permanent and severe facial disfigurement" is unlike most of the other enumerated "grave" injuries, which are, on the whole, amenable to "objectively ascertainable" determinations as a matter of law (Rubeis,3 N.Y.3d at 417, 788 N.Y.S.2d 292, 821 N.E.2d 530;see alsoMeis v. ELO Org.,97 N.Y.2d 714, 716, 740 N.Y.S.2d 689, 767 N.E.2d 146[2002][loss of thumb is not a "permanent and total loss of use" of a hand];Castro,96 N.Y.2d at 401, 736 N.Y.S.2d 287, 761 N.E.2d 1014["`loss of multiple fingers' cannot sensibly be read to mean partial loss of multiple fingers"]).Generally, courts have been able to conclusively say, one way or the other, whether an injury is or is not so "severe" for section 11 purposes (see e.g.Rosen v. Nygren Dahly Co.,1 A.D.3d 998, 998, 768 N.Y.S.2d 255[4th Dept.2003][minor facial scarring insufficient as a matter of law];Krollman v. Food Automation Serv. Techniques, Inc.,13 A.D.3d 1209, 1210, 787 N.Y.S.2d 581[4th Dept.2004][three-millimeter scar above eyebrow and "some mottling of her cheeks" insufficient];Giblin v. Pine Ridge Log Homes, Inc.,42 A.D.3d 705, 707, 840 N.Y.S.2d 196[3d Dept.2007][loss of eye, though a permanent condition, not a severe disfigurement where use of prosthesis leaves only negligible alteration in facial appearance]).However, these determinations have been rendered without the aid of a reliable, fairly predictable legal guidepost.

In construing the statutewe follow two fundamental principles: first, we implement the intent of the Legislature.Second, we construe statutory words in light of "their plain meaning without resort to forced or unnatural interpretations"(Castro,96 N.Y.2d at 401, 736 N.Y.S.2d 287, 761 N.E.2d 1014).The statutory purpose of section 11, as explained above, is clear.Turning to the critical statutory words, we note initially that permanency and severity are both conditions precedent to a finding of "facial disfigurement."With competent medical evidence, a court may generally determine whether a facial disfigurement is permanent.Severity presents a different inquiry.Consistent with the legislative intent behind section 11, we conclude that "severity" implies a highly limited class of disfiguring injuries beyond minor scarring or lacerations.

"Severe" is variously defined as something "[c]ausing sharp discomfort or distress"(American Heritage Dictionary 1248[3d ed.2000]) or something "[e]xtremely intense," as in "severe pain"(Webster's II New College Dictionary 1012 [1995]; see also Webster's Third New International Dictionary, Unabridged [2008][something "of a great degree or an undesirable or harmful extent"(emphasis added)]).Plainly,...