McComber v. Lehrer McGovern Bovis, Inc.

• Decision Date: 27 April 2006
• Docket Number: 8413.
• Citation: 28 A.D.3d 402,818 N.Y.S.2d 1,2006 NY Slip Op 03172
• Parties: BENJAMIN McCOMBER, Respondent, v. LEHRER McGOVERN BOVIS, INC., et al., Defendants. LIBERTY MUTUAL GROUP, Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

28 A.D.3d 402

818 N.Y.S.2d 1

2006 NY Slip Op 03172

BENJAMIN McCOMBER, Respondent, v. LEHRER McGOVERN BOVIS, INC., et al., Defendants LIBERTY MUTUAL GROUP, Nonparty Appellant.

8413.

Appellate Division of the Supreme Court of the State of New York, First Department.

April 27, 2006.

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered December 27, 2004, which, in an action for personal injuries sustained at a work site, fixed nonparty-appellant workers' compensation carrier's lien in the amount of $23,355.68, unanimously affirmed, with costs.

Carrier paid plaintiff a total of $228,605.18 in continuous weekly payments of $400 beginning as of the date of the accident and ending three years later, shortly after the jury verdict that effectuated the "high-low" settlement agreement under which plaintiff recovered $14.5 million. Carrier admits that plaintiff is totally disabled and that it would have been required to pay him compensation benefits for life were it not for this recovery. Carrier further admits that using the $400 a week figure, the present value of the future compensation benefits it would have been required to pay plaintiff is $387,143.30, and that its equitable share of plaintiff's litigation costs is one-third. Given these circumstances, the motion court, in accordance with Matter of Kelly v. State Ins. Fund (60 NY2d 131 [1983]), properly assessed carrier's share of plaintiff's litigation costs as a third of not only $228,605.18 (the past compensation benefits paid) but also of $387,143.30 (the present value of the future compensation benefits not paid because of the recovery). The result is a reduction of carrier's lien from $228,605.18 to $23,355.68 (1/3 of $228,605.18 = $76,201.73. $228,605.18 - $76,201.73 = $152,403.45. 1/3 of $387,143.30 = $129,047.77. $152,403.45 - $129,047.77 = $23,355.68).

We reject carrier's argument that the $400 a week it continuously paid plaintiff for over three years, through the trial and for almost two months thereafter, does not provide a reasonably certain basis for estimating the future benefits extinguished by the recovery (cf. Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810, 812 [1986], distinguishing, inter alia, O'Connor v. Lee Hy Paving Corp., 480 F Supp 716 [EDNY, 1979]; Matter of McKee v. Sithe Independence Power Partners, 281 AD2d 891 [2001). We also reject carrier's argument that plaintiff is not entitled to a Kelly reduction of its lien because, in...