Pennisi v. Standard Fruit & S.S. Co.

• Decision Date: 14 July 1994
• Court: New York Supreme Court — Appellate Division
• Parties: Salvatore PENNISI, Plaintiff-Respondent, v. STANDARD FRUIT & STEAMSHIP COMPANY, Defendant-Appellant, and Netumar Lines, Defendant. STANDARD FRUIT & STEAMSHIP COMPANY, Third-Party Plaintiff-Appellant, v. INTERNATIONAL TERMINAL OPERATING COMPANY, Third-Party Defendant-Respondent.

Page 519

614 N.Y.S.2d 519

206 A.D.2d 290

Salvatore PENNISI, Plaintiff-Respondent, v. STANDARD FRUIT & STEAMSHIP COMPANY, Defendant-Appellant, and Netumar Lines, Defendant.

STANDARD FRUIT & STEAMSHIP COMPANY, Third-Party Plaintiff-Appellant, v. INTERNATIONAL TERMINAL OPERATING COMPANY, Third-Party

Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

July 14, 1994.

Before ROSENBERGER, J.P., and ELLERIN, ROSS, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Arber, J.), entered on or about April 7, 1993, which, inter alia, granted the third-party defendant International Terminal Operating Company's (ITO's) motion for summary judgment dismissing the third-party complaint seeking contribution and indemnification while also granting leave to the defendant and third-party plaintiff Standard Fruit & Steamship Company to renew its cross motion for conditional summary judgment on its claim for indemnification at trial, unanimously modified, on the law, to deny that portion of ITO's motion for summary judgment dismissing the third-party complaint seeking indemnification, that portion of the third-party complaint is reinstated, and the order is otherwise affirmed, without costs.

The plaintiff was a longshoreman employed by the third-party defendant International Terminal Operating Company ("ITO"). After he received workers' compensation benefits from ITO, he instituted this action against Standard Fruit & Steamship Company ("Standard Fruit") and Netumar Lines to recover damages for injuries sustained when he collided with a truck while driving a forklift on South Street between Pier 42 and Pier 36. ITO was hired by Standard Fruit to perform stevedoring services at Pier 42, which had been leased by Standard Fruit. It also performed these services at Pier 36 which was leased by Netumar Lines. The plaintiff maintained that he was injured due to the negligence of Standard Fruit and Netumar Lines because at their insistence, the gates between Piers 36 and 42 were closed, requiring him to drive the forklift on the dangerous thoroughfare of South Street in order to get gasoline from Pier 36. Standard Fruit and Netumar then impleaded ITO.

ITO's motion for summary judgment dismissing Netumar's third-party complaint was granted and Netumar has not appealed. ITO then moved for summary judgment dismissing Standard Fruit's third-party complaint which sought contribution and indemnification and Standard Fruit cross moved for conditional summary judgment on its claim for indemnification. In a confusing and seemingly contradictory determination, the Supreme Court, after mislabeling the matter a "slip and fall" case, granted ITO's motion, but denied Standard Fruit's cross motion with leave to renew at trial. Clearly, dismissal of the third-party complaint precluded Standard Fruit from taking further action with respect to its claim for indemnification.

We modify to deny that portion of ITO's motion for summary judgment dismissing the third-party complaint seeking indemnification since questions of fact exist precluding an award of summary judgment on this issue to either party at this juncture.

We note initially that although the plaintiff stevedore commenced this action in state court, he satisfied both the "status test" and "situs test" for determining an "employee" under the Longshore and Harbor Workers' Compensation Act ("LHWCA", 33 U.S.C. § 901 et seq.; see, Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320; Triguero v. Consol. Rail Corp., 932 F.2d 95). Therefore, the LHWCA, rather than New York law governs pursuant to the "savings to suitors" clause of the Judiciary Act (28 U.S.C. § 1333; Triguero v. Consol. Rail Corp., supra; Kenny v. Bacolo, 61 N.Y.2d 642, 472 N.Y.S.2d 78, 460 N.E.2d 219; Agnese v. Taylor Mach. Works, 171 A.D.2d 831, 567 N.Y.S.2d 766).

Where an employer has paid workers' compensation benefits to its injured employee, its liability under the LHWCA "shall be exclusive and in place of all other liability of such employer to the employee ... and anyone otherwise entitled to recover damages from [it] at law or in admiralty on account of such injury" (33 U.S.C. § 905[a]. The LHWCA is therefore the injured longshoreman's exclusive remedy against his stevedore employer (see, Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 113, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694; Magno v. Waterman Steamship Lines, 89 A.D.2d 958, 959, 454 N.Y.S.2d 105).

The Supreme Court properly dismissed that portion of the third party complaint seeking contribution since once ITO fulfilled its obligation under the LHWCA by paying out benefits to the plaintiff, further tort-based contribution from the employer was foreclosed (see, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318; Triguero v. Consol. Rail Corp., supra; Zapico v. Bucyrus-Erie Co., 579 F.2d 714; Fragedis v. Farrell Lines, 64 N.Y.2d 987, 489 N.Y.S.2d 40, 478 N.E.2d 181; Magno v. Waterman Steamship Lines, supra). The exclusivity provision of § 905(a) immunizes such employer from third-party claims for contribution (Triguero v. Consol. Rail Corp., supra; Zapico v. Bucyrus-Erie Co., supra).

Unlike contribution claims, however, actions for indemnity are not necessarily foreclosed since the employer's liability "springs from an independent contractual right. It is not an action by or on behalf of the employee and it is not one to recover damages 'on account of' an employee's 'injury or death'. It is a simple action to recover, under a voluntary and self-sufficient contract ..." (Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 130, 76 S.Ct. 232, 235-36, 100 L.Ed. 133; Zapico v. Bucyrus-Erie Co., supra, at 719).

It was error to dismiss Standard Fruit's claim for indemnification since questions of fact exist precluding an award of summary judgment. Although the LHWCA precludes a negligent "vessel" from...