Mooney v. City of NY

• Citation: 219 F.3d 123
• Parties: (2nd Cir. 2000) GEORGE MOONEY, Plaintiff-Appellant, v. THE CITY OF NEW YORK, Defendant-Appellee, Docket No 99-9062
• Decision Date: 01 August 1999
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 123

219 F.3d 123 (2nd Cir. 2000)

GEORGE MOONEY, Plaintiff-Appellant, v. THE CITY OF NEW YORK, Defendant-Appellee,

Docket No 99-9062

August Term, 1999

UNITED STATES COURT OF APPEALS

For the Second Circuit

(Argued: April 11, 2000)

(Decided: May 22, 2000)

(Amended: June 28, 2000)

Appellant appealed from an amended judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) granting appellee's motion for summary judgment.

Vacated and remanded.

[Copyrighted Material Omitted]

EDWARD M. KATZ, Cappiello, Hofmann & Katz, New York, NY, for Appellant.

JULIE STEINER, Assistant Corporation Counsel (Michael D. Hess, Corporation Counsel of the City of New York; Steven Levi, Elizabeth S. Natrella, Ralph Foertsch, of counsel), for Appellee.

Before: NEWMAN, KEARSE, KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

George Mooney, plaintiff-appellant, appeals from the amended judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), granting summary judgment in favor of the City of New York (the "City"), defendant-appellee. The district court held that an award of workers' compensation benefits constituted a waiver of a Jones Act claim. For the reasons that follow, we vacate the amended judgment of the district court and remand with instructions for further proceedings.

I. BACKGROUND

The essential facts are not in dispute except where noted. George Mooney was an employee of the Department of Transportation of the City of New York (the "City") at all times relevant to this action. The City is a self-insured employer. In May 1996, while assigned to work aboard a Staten Island ferry, Mooney slipped and fell on a set of stairs in the engine room. In June 1996, with the assistance of counsel, Mooney filed a claim under the New York State Workers' Compensation Law for alleged injuries to his right leg and back. On June 27, 1996, the City advised the New York State Workmen's Compensation Board (the "Board"), which is established under N.Y. Work. Comp. Law 142(1) "to hear and determine all claims for compensation or benefits" under that law, that the City would not contest Mooney's right to compensation, provided Mooney submitted prima facie medical evidence and a medical consultant's report. Mooney did so.

Mooney began receiving compensation benefits in November 1996 pending a hearing before the Board, but payments were suspended in December 1996 due to a lack of updated medical evidence. In January 1997, the first hearing involving Mooney's workers' compensation claim was held before a workers' compensation law judge. The judge received evidence regarding Mooney's accident, notice to his employer, his injuries for the period from the accident until January 1997, and the causal connection between the accident and the injuries. The judge determined that Mooney was entitled to workers' compensation benefits from May 17, 1996 to January 15, 1997, less two days he worked, at the rate of $ 400 per week. He also directed the City to continue payments beyond January 15, 1997 pending further determination, and the City complied.

In May 1997, after a hearing, the Board granted a second award at the same rate to Mooney, covering the period from January 15, 1997 to February 28, 1997, the day Mooney returned to work, and authorized orthopedic consultation. By notice dated March 28, 1997, the City's Workers' Compensation Division, Law Department ("Law Department"), informed Mooney that he had been overpaid $ 1,680 for the period from February 28, 1997 to March 30, 1997. The same notice indicated that Mooney had received a total award of $ 16,400 for a temporary disability, and that "compensation for disability [had] been paid in full" because Mooney had returned to work. A second notice from the Law Department to Mooney, dated May 30, 1997, reiterated that he had been overpaid for the period from February 28 to March 2, 1997, and that he had been paid in full.

A third hearing held in December 1997 resulted in no further award, only authorization for a bone scan of Mooney's left leg. The fourth hearing was held in April 1998, when Mooney for the first time alleged injury to his right knee. No additional award was granted but the case was continued to allow Mooney to produce medical evidence of his alleged right knee injury. At the fifth and final hearing in October 1998, it was determined that Mooney had suffered a "12 1/2 % SLU [schedule loss of use]" of his left leg. No finding was made regarding the right leg. Mooney did not appeal the closure of his case.

Mooney was represented by counsel at each of the five hearings, although the parties dispute whether his attorney was knowledgeable about federal maritime law and whether the attorney had advised Mooney of his federal maritime rights.

In January 1999, represented by a different attorney, Mooney commenced the present action, asserting causes of action for negligence under the Jones Act and for unseaworthiness under general maritime law, as well as for a seaman's traditional remedies of maintenance and cure.¹ After discovery, the City moved for summary judgment on the ground that Mooney's acceptance of workers' compensation over a nine-month period, while represented by counsel, together with his failure to appeal timely the closure of his case, constituted an implied waiver of his federal maritime rights.²

A. The district court's decision

By Order dated August 2, 1999, the district court granted the City's motion. On Mooney's motion for reconsideration, the court again held in favor of the City and entered judgment accordingly. The district court relied primarily on Heagney v. Brooklyn Eastern Dist. Terminal, 190 F.2d 976 (2d Cir. 1951), which dealt with the analogous question of whether acceptance of workers' compensation benefits constituted a waiver of remedies otherwise available under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq. ("FELA"). The court:

understood Heagney as adopting the view, essentially policy-based, that the active pursuit of a worker's compensation claim in which the claimant is represented by counsel waives any maritime tort claim without regard to the subjective understanding and intention of the plaintiff.

Mooney v. City of New York, No. 99 Civ. 0005, slip op. at 3 (S.D.N.Y. Aug. 25, 1999).

The court found the facts in the present case to be "at least as strong for the defendant as those in Heagney." Id. at 2. In particular, the district court found that:

[w]hile the City did not controvert compensation, payments, after initially commencing were terminated in December 1996. The Workers' Compensation Board subsequently held five hearings . . . on issues including the accident, the causal relation between the claimed injuries and the accident, the extent and permanency of the injury, the need for further treatment, and the rate of compensation. Plaintiff was represented throughout by counsel. He obtained resumption of compensation payments after the initial termination and a further series of awards. He did not institute this action until approximately 26 months after first receiving compensation payments, which ultimately totaled over $ 16,000.

Id. Based on these facts, the district court granted summary judgment for the City. B. Reyes v. Delta Dallas Alpha Corporation

In December 1999, after the district court's ruling, this Court decided Reyes v. Delta Dallas Alpha Corp., 199 F.3d 626 (2d Cir. 1999). The plaintiff in that case, while receiving ongoing voluntary workers' compensation from his employer, notified his employer that he had asserted a claim, presumably with the Board, under federal maritime law and intended to treat the compensation payments as a "set-off." See id. at 628. The record did not indicate that either the employer or the Board acted on this claim before the employee filed a subsequent Jones Act suit in federal court. See id. On motion by the employer, the district court granted summary judgment dismissing the complaint on the ground that the plaintiff's prosecution of a claim for state workers' compensation benefits amounted to a waiver of his Jones Act rights. See id.

On appeal, this Court vacated the district court's judgment, noting that:

In Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 91, 116 L. Ed. 2d 405, 112 S. Ct. 486 (1991), the Supreme Court held that the receipt of voluntary worker's compensation payments under a federal worker's compensation statute does not bar a subsequent action under the Jones Act, unless the claimant received a formal award from the compensation board settling his claims in their entirety.

Id. (emphasis added). Therefore, the Court held that "federal law does not treat Reyes's mere receipt of interim compensation payments as a waiver of his Jones Act claim. " Id. 199 F.3d at 629.

Furthermore, the Court held that 113 of the New York Workers' Compensation Law did not bar the maritime action. Section 113 provides, in relevant part, that:

awards according to the provisions of this chapter may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty . . . rights and remedies . . . .

N.Y. Work. Comp. Law 113 (McKinney 2000). The Court concluded that Reyes's conduct would not be considered as a waiver under New York law because he "never 'evinced an intention to waive redress under the Jones Act.'" Reyes, 199 F.3d at 629 (alteration in original) (quoting Dacus v. Spin-Nes Realty & Constr. Co., 22 N.Y.2d 427, 430, 293 N.Y.S.2d 83, 239 N.E.2d 718 (1968)).

The Court expressly rejected the employer's reliance on Heagney, stating that it was "superseded authority" insofar as it predated Gizoni and the New York Court of Appeals' interpretation of 113. Reyes, 199 F.3d at 629. Because the district court's decision in the present case rested heavily on...