Gleason v. Holman Contract Warehousing, Inc.

• Decision Date: 18 September 1996
• Parties: Timothy GLEASON et al., Plaintiffs, v. HOLMAN CONTRACT WAREHOUSING, INC., et al., Defendants. HOLMAN CONTRACT WAREHOUSING, INC., Third-Party Plaintiff, v. TRANSPORT ASSOCIATES, INC., Third-Party Defendant.
• Court: New York Supreme Court

Page 647

649 N.Y.S.2d 647

170 Misc.2d 668

Timothy GLEASON et al., Plaintiffs, v. HOLMAN CONTRACT WAREHOUSING, INC., et al., Defendants.

HOLMAN CONTRACT WAREHOUSING, INC., Third-Party Plaintiff, v. TRANSPORT ASSOCIATES, INC., Third-Party Defendant.

Supreme Court, Albany County.

Sept. 18, 1996.

Robert A. Murphy, Jr., Albany, for Holman Contract Warehousing, Inc., defendant and third-party plaintiff.

F. Douglas Novotny, Albany, for Transport Associates, Inc., third-party defendant.

Powers & Santola, Albany, for plaintiffs.

Friedman, Hirschen, Miller, Coughlin & Campito, P.C., Schenectady, for Customized Transportation, Inc., defendant.

Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., Albany, for General Electric Company and others, defendant.

Horigan, Horigan, Pennock & Lombardo, P.C., Amsterdam, for Sears Logistic Services, Inc., and another, defendants.

New York State Trial Lawyers Association, Syracuse (Robert Lahm, of counsel), amicus curiae.

JOSEPH HARRIS, Justice.

THE ISSUES

Trial of the above-consolidated actions is scheduled to commence on September 30, 1996. The third-party defendant, Transport Associates, Inc. was the plaintiff's employer at the time of the accident giving rise to these actions. Transport Associates, Inc., is under the protection of a bankruptcy court in Kentucky. While it appears that the third-party action against the employer has been commenced and that the employer has been served, said third-party defendant-employer On September 10, 1996, Governor Pataki signed into law a package of amendments to the Workers' Compensation Law and diverse related statutes, including CPLR, section 1401 (Contribution), and CPLR Article 16 (Joint and Several Liability), known as the "Omnibus Workers' Compensation Reform Act of 1996", effective immediately, which primarily forbids third-party actions against employers for contribution except in cases where the employee sustained what the statute refers to as "grave injury", defined as one of the following: "death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability." (See amendments to section 11 of the Workers Compensation Law, as amended by L 1996, ch. 635, § 2).

has not yet appeared in the action due to the automatic stay in bankruptcy. Defendant, Third-Party Plaintiff, Holman Contract Warehousing, Inc., has moved in bankruptcy court to lift the automatic stay against Transport Associates, Inc.

The injuries in the instant case, although serious, do not constitute "grave injury" as defined in the statute. Further, although "effective immediately, the new "Omnibus Workers' Compensation Reform Act of 1996" is silent as to whether it is retroactive to accidents occurring prior to its effective date of September 10, 1996, or prospective only, applicable solely to accidents occurring subsequent thereto. If retroactive, the third-party action against Transport Associates, Inc. and thousands like it, would be subject to a motion to dismiss; if prospective only, the new statute would not affect prior accidents and third-party actions against employers already commenced.

At a pre-trial conference held September 13, 1996, a motion was made by plaintiff, pursuant to CPLR, section 603, for an order severing the third-party action so as not to delay the commencement of trial pending a judicial determination of whether the new statute and its component parts are retroactive or prospective only. That motion is opposed by defendant and third-party plaintiff, Customized Transport, Inc.

THE FACTS

Plaintiff, Timothy Gleason, a tractor-trailer driver in the employ of third-party defendant Transport Associates, Inc., was severely injured on September 22, 1992, when several home appliance ranges, packed in cartons, fell on him while he was in the process of unloading them from a tractor-trailer owned by plaintiff's employer, Transport Associates, Inc. and leased to defendant, Product Distribution Company and used to haul appliances manufactured by defendant, General Electric Company, to warehouses in the northeast.

THE OMNIBUS WORKERS' COMPENSATION REFORM ACT OF

1996--RETREAT FROM DOLE V. DOW CHEMICAL CO.

Section 2 of this act (L 1996, ch. 635), in pertinent part, amends section 11 of the workers' compensation law to provide that:

An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by external physical force resulting in permanent total disability.

Section 2 (L 1996, ch. 635) also provides that:

For purposes of this section the terms "indemnity" and "contribution" shall not include a claim or cause of action for contribution or indemnification based upon a Section 4 of the act (L 1996, ch. 635) amends CPLR 1401 to provide:

provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered.

Except as provided in sections 15-108 and 18-201 of the general obligations law, sections eleven and twenty-nine of the workers' compensation law, or the workers' compensation law of any other state or the federal government, two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.

Section 5 of the act (L 1996, ch. 635) amends CPLR 1601(1), providing:

That the culpable conduct of any person shall not be considered in determining any equitable share herein to the extent that action against such person is barred because the claimant has not sustained a "grave injury" as defined in section eleven of the worker's compensation law.

As aforesaid, it is necessary for the court to determine whether the provisions of said act relating to Dole v. Dow Chem. Co. (30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288) claims shall be given prospective or retroactive effect during the trial of this action. If the Court holds that the act is to be applied retroactively, it follows then that the severance must be granted, the third-party action must be dismissed, and the jury must be instructed that they are not to consider Transport Associate's culpable conduct, if any, in determining the equitable shares of the parties.

Section 6 of the "Omnibus Workers' Compensation Reform Act of 1996 amends CPLR, section 1602(4), to provide that the limitations on joint and several liability in claims for personal injury contained in CPLR, section 1601, shall:

4. not apply to claims under the workers' compensation law or to a claim against a defendant where [such defendant has impleaded a third party]claimant has sustained a "grave injury" as defined in section eleven of the workers' compensation law to the extent of the equitable share of any person against whom the claimant is barred from asserting a cause of action because of the applicability of the workers' compensation law [to the extent of the equitable share of said third party] provided, however, that nothing in this subdivision shall be construed to create, impair, alter, limit, modify, enlarge, abrogate, or restrict any theory of liability upon which any person may be held liable.

Section 90 of the act (L 1996, ch. 635) provides, as to each of the aforesaid provisions: "This act shall take effect immediately."

The first determination to be made by the Court to decide the motion before it is whether the act is retroactive or prospective only. The starting point is a journey back into the murky and rigid times of the common law and a study of the history of the development of the law of contribution and indemnification.

THE JUDICIAL WORLD PRIOR TO DOLE ¹

CONTRIBUTION--THE COMMON LAW REVISITED

If there was one eternal verity in the common law it was that there was no right of contribution among joint tortfeasors.

The concept, "indemnification", was indeed known to the common law, but this was a far As stated in McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 317-28, 107 N.E.2d 463 (1952): "There is a fundamental distinction between contribution and indemnity. The right of contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution ... The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a contract, express or implied, and full, not partial, reimbursement is sought."

cry from the concept commonly known as "contribution."

The tort revolution respecting the law of modern-day contribution commenced on September 1, 1928 with the enactment by the State Legislature of section 211-a of the Civil Procedure Act, that section providing for the first time, as did its successor, CPLR, sec. 1401, that a right of contribution exists in favor of one or more joint tortfeasors after a joint judgment had been...