Summary Judgment continue...

X. PAPERS TO BE SUBMITTED: (SEE SAMPLE MOTION ATTACHED).

1) Plaintiff's Affidavit.

The affidavit should be short and to the point. Plaintiff merely needs to show the necessary elements of his/her statutory cause of action. Avoid detail with respect to the manner in which the event occurred. If plaintiff was on a ladder and he fell, simply state, "I was working on a ladder and I was caused to fall." Avoid statements like "I fell from the scaffold when it rolled away from the building because the wheels were defective." Defendant may oppose the motion with an affidavit of a co-worker who states "The wheels were inspected after the accident and were working perfectly", thus creating the appearance that the accident occurred due to plaintiff's failure to lock the scaffold wheels. By submitting a detailed affidavit, a plaintiff can inadvertently create an issue of fact as to how the accident happened. Remember: the plaintiff does not have any burden to prove why an accident occurred, but merely needs to show that the statute was violated (i.e., the device given was "inadequate", without explaining how and why it was inadequate). A plaintiff's offer of too much detail of the facts will produce a contrary version of those facts, leading some judges to deny summary judgment on grounds there is an issue of fact as to how the accident happened.

2) Witness Affidavit.

If there is an independent witness (either to the accident itself or to the events, which existed at or about the time of the accident), an affidavit from such person can/should be made a part of the motion; as independent proof that the accident occurred. The mere presence of this affidavit can eliminate any question that the plaintiff is fictionalizing the happening of the accident. Under certain circumstances, it may be necessary to establish in more detail the how's and why's of the accident. By doing it through a witness, as opposed to plaintiff, you can supply the information, yet keep plaintiff's credibility from becoming an issue. A witness affidavit can also state multiple ways in which the defendant violated the statute. Sometimes, defendants will argue the ladder is a safety device and there now exists an issue as to whether it was adequate or not. By showing the court, for example, that the ladder was neither tied at the top nor held at the bottom, plaintiff will demonstrate the ladder, although a safety device, was still inadequate by not being in compliance with the industrial code, OSHA rules, or custom and practice in the construction industry.

3) Expert Affidavit.

Although elements for a Labor Law cause of action are generally straightforward, an expert affidavit can be used to supply the added leverage to convince the Court of the merits of the case. The expert can also resolve such issues as whether the type of activities taking place at the time of the accident comes within §240 (repairing, altering, painting, pointing, etc., as opposed to "maintenance" type work) or whether the work was performed at or on a building or structure.

4) Attorney's Affidavit.

Should merely serve as a road map or an outline on the motion.

5) Memorandum of Law.

Should accompany the motion papers. It's so much easier for the Court to plagiarize an attorney's memo than to write an original decision. Timing of the memorandum is critical. If the plaintiff anticipates that there are complex issues that need to be resolved before the motion is granted, then the memo should not be submitted until after the defendants have served their opposing papers. By serving the memo in anticipation of these issues, you may inadvertently alert the defendant to an argument, which may otherwise have been overlooked.

XI. PLAINTIFF'S MOTION FOR JUDGEMENT ON THE ISSUE OF DAMAGES

A. Issue Preclusion/Collateral Estoppel

1) Issue preclusion, sometimes referred to as collateral estoppel, is the legal principle that precludes a party from re-litigating an issue, which has already been determined. Essentially, all that need be shown is that the party had a full and fair opportunity to protect their interests and/or litigated the issue and they are now urging a position contrary to the holding. Most often, defendants try to use collateral estoppel/issue preclusion defensively. Examples are as follows:

a) Plaintiff sues and claims defendant was a general contractor on the job site, and is therefore responsible for his injuries under Labor Law §240. Defendant seeks dismissal of plaintiff's claim alleging it was plaintiff's employer (not the G.C.) and this issue was already resolved at a Worker's Compensation Board forum.

b) Plaintiff, at a personal injury trial, attempts to show permanent disability through testimony from a treating physician. Defendant moves to preclude such testimony on the basis that the Worker's Compensation Board had already determined that plaintiff is no longer disabled.

c) Plaintiff seeks to prove injury to his right leg occurred during a construction accident, which is now the subject of litigation. Defendant moves to preclude evidence involving injury to the right leg on the basis that the Compensation Board determined injury to the right leg did not occur during the accident.

d) Plaintiff in an auto accident has no-fault benefits denied on the basis treatment is no longer warranted. No-fault arbitrator rules in favor of the insurance carrier. Plaintiff subsequently attempts to prove necessity of medical treatment in civil lawsuit. Defendant moves to preclude plaintiff from such proof citing prior resolution of this issue by arbitrator.

Defendants are able to take decisions from compensation board, no-fault arbitrators, prior personal injury lawsuits, criminal convictions, disability hearings, litigation between plaintiffs and their health insurance carrier, etc., and use these adverse decisions against plaintiff. Furthermore, this is generally a one-way street; plaintiff is usually unable to use favorable decisions in these forums to preclude defendants from re-litigating these issues again at trial. This is so because plaintiffs generally cannot show the person against whom they seek to use issue preclusion were parties to the previous controversy. (i.e., defendant in personal injury lawsuit was not on the other side of no-fault arbitration, not a party to disability hearing or worker's compensation proceeding). This will be true except in the realm of construction accidents, where sometimes the defendant in the personal injury lawsuit is actually the "real party in interest" at a compensation hearing. (See Section 3 below.)

2) Why seek judgment on the extent of damages for a plaintiff in a Labor Law case? One scenario: plaintiff obtained judgment on the issue of liability on a previous motion for summary judgment. The only remaining issue involves the extent of damages. The matter is set for a jury trial. Plaintiff claims that as a result of a construction accident seven years earlier, he has been totally disabled from work with a debilitating lower back injury. Over the past 7 years plaintiff has received, at various times, full wage loss benefits and/or 50% wage-loss benefits through the worker's compensation carrier. During the period, the compensation carrier has repeatedly stopped benefits, forcing several hearings to be held over the years and repeatedly lost such hearings, each time with the hearing Referee reinstating benefits. All medical expenses have been paid through compensation, and the compensation carrier asserts a lien exceeding $100,000.00.

In the lawsuit defendants claim that plaintiff is a malingerer and faking his injuries. Just prior to trial, defendant produces surveillance tapes showing plaintiff picking-up bags of cement, mixing concrete, pouring sidewalks, walking normally (except when exiting his attorney's office) etc. The possibility of disaster looms, especially if the jury sees the tapes!!!

Such was the case in a matter handled in Supreme Court, Albany County in January of 1994. Plaintiff's strategy was to make a motion precluding the defendant from re-litigating issues of lost wages and disability for the 7-year period from the date of accident to the date of the trial. Further, plaintiff sought to have the Court advise the jury, not only that the plaintiff has already established liability (S/J on liability granted), but that he is entitled to receive 100% (or 50% as the facts dictate) of his average yearly income for the past 7 years, plus the amount of all medical expenses incurred to date, and that the jury's only function is to determine an award for the past and future pain and suffering and future lost wages and medical expenses. Attached is the plaintiff's affidavit and memorandum of law in support of this motion. The motion was granted and the Court instructed the jury at the commencement of the trial that they must find in favor of the plaintiff, that past lost wages and medical expenses have already been determined by the Court to be in the sum of approximately $275,000.00 and that the jury was about to hear testimony involving pain and suffering (past and future) as well as future lost wages and medical expenses. Their only job, instructed the judge, was to determine the value of pain and suffering and future lost wages and medical expenses. The net affect of this instruction was to tell the jury that the minimum award must be $275,000.00, plus an amount for pain and suffering, future lost wages and medical expenses. The defendant's insurance carrier subsequently changed its position from "under no circumstances will we pay money on this case" to an offer of a substantial sum with a complete waiver of the workers' compensation lien.

3) How to bind defendant in a Labor Law case with the results of the prior compensation decision? Under Workers' Compensation law the employer and/or their compensation carrier, has a right to litigate issues of employment, wages, extent of disability, causal relation, etc. In most instances, it is in fact the carrier (not the employer) who denies further compensation benefits, thereby forcing the issue to a hearing. The resulting compensation decision is binding, not only on plaintiff's employer, but also the compensation carrier.

In representing an injured construction worker in a third party lawsuit, the claims are generally brought against the owner and the owner's contractor, since they are vicariously liable under Labor Law §§ 240 and 241. Obviously, plaintiff cannot sue his employer because of the prohibitions under compensation law. The owner and contractors often times have absolutely nothing to do with the circumstances giving rise to plaintiff's accident, having already delegated that work to plaintiff's employer. Because these defendants are only vicariously liable, they will often times turn over the case to plaintiff's employer. Plaintiff's employer will be defended more often than not, through his workers' compensation policy's "1-B" coverage. Thus, the liability carrier (in the third-party action) is the same party who litigated the issues in the workers' compensation forum. There exists case law in New York that holds that the real party in interest in a personal injury case is not just the main defendant, but also their liability carrier. Therefore plaintiff, under these circumstances, can show the identity of the real party in interest in both forums are the same. (See attached memorandum of law for case law citations).

4) Another issue that defendant may raise is that at the compensation proceeding, the insurance carrier's sole concern is the amount of compensation benefits. The defendant in the third-party lawsuit has different interests to protect, i.e., a verdict which may amount to millions of dollars. Therefore, defendants may argue that the issues and consequences were not the same at the compensation proceeding and thus, the defendant in the personal injury lawsuit must be given an opportunity to re-litigate the issue so as to protect the full extent of his potential liability (an exposure not present at the compensation hearing). This argument can be disposed of by showing that the compensation carrier, who is the real party in interest in the lawsuit, must insure the defendant under the 1-B provisions of the employer's worker's compensation policy. This portion of the compensation insurance coverage provides the defendant unlimited liability coverage. Therefore, the defendant in the personal injury lawsuit will never be subject to a money judgment in excess of the policy limits awarded by a jury, no matter how large the verdict is.

Back to Table of Contents

Endnotes >>