[*1]
Lepkowski v State of New York
2012 NY Slip Op 52442(U) [38 Misc 3d 1222(A)]
Decided on September 25, 2012
Ct Of Cl
Patti, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 25, 2012
Ct of Cl


Ann E. Lepkowski Claimant(s)

against

The State of New York, Defendant(s).




120475



Claimant's attorney:LEARNED, REILLY, LEARNED & HUGHES, LLP

BY: SCOTT J. LEARNED, Esq.

Defendant's attorney:HON. ERIC T. SCHNEIDERMAN

Attorney General of New York State

BY: TAMARA B. CHRISTIE, Esq.

Assistant Attorney General

Philip J. Patti, J.



Claimant Ann Lepkowski ("Claimant"), filed Claim No. 120475 seeking money damages for an accident that occurred on November 30, 2009 and resulted in injuries to her right shoulder, right ribs, and right arm. Defendant now moves to dismiss the claim on the grounds that it is barred by the exclusivity provisions of the Workers' Compensation Law. For the reasons set forth below, the motion is granted and the claim dismissed.

The facts that are alleged in this claim are relatively straightforward, and occurred at Groveland Correctional Facility ("Groveland"). On November 30, 2009 at approximately 11:45 A.M., Claimant, who was then employed by the State of New York as a per diem Nurse II, was [*2]riding as a passenger in a van driven by a correction officer when another vehicle pulled into the path of the van. The second vehicle was operated by an inmate who was then incarcerated at Groveland. As a result of this other vehicle pulling into the path of the van in which Claimant was a passenger, the correction officer stopped the van suddenly and without warning, which caused Claimant to be thrown forward. Claimant was in the course of her employment at the time of the accident, and so she applied for and received Workers' Compensation benefits following the accident. All of her medical expenses related to her March 5, 2010 surgery and other treatment of the injuries to her right shoulder, arm, and ribs were covered by New York State's workers' compensation carrier, the State Insurance Fund. Following the surgery, Claimant lost 37 weeks of work at an average weekly wage that was established at $278.11, so she was awarded a total of $10,290.00 in lost wages. On March 15, 2011, Claimant also received a Schedule Loss of Use award of 17.5% for the permanent injuries that she sustained in the November 30, 2009 accident.

On the instant motion to dismiss, Defendant contends simply that the underlying claim is barred by the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law �� 10, 11, and 29 [6]).

Claimant, in response, presents a basis for allowing the underlying claim to commence that is hardly novel, but undoubtedly unique. First, Claimant contends that Workers' Compensation Law � 29 (6) does not apply here, because she was injured as a result of the alleged negligence of an inmate, who is not considered an "employee" for purposes of the Workers' Compensation Law. Rather, Claimant contends that Workers' Compensation Law � 29 (1) applies here, which provides that an employee who is injured by the negligence of one "not in the same employ" may pursue a remedy other than workers' compensation against "such other," subject to a lien on any workers' compensation benefits that the employee may have received. Accordingly, Claimant also intends to file an action in Supreme Court seeking damages from the inmate driver.

Claimant then turns to Vehicle and Traffic Law � 388, which provides, in relevant part:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.

Essentially, Claimant contends that, although this sort of derivative claim would be barred by Workers' Compensation Law � 29 (6) if the driver of the other vehicle had been a co-employee, the fact that the other driver was an non-employee of the State permits her to seek damages directly from the State by operation of its responsibility under Vehicle and Traffic Law � 388. Both her pending action in Supreme Court and the underlying claim here are expressly permitted pursuant to Workers' Compensation Law � 29 (1).

In its reply, Defendant again avers that the underlying claim here is barred by the exclusivity provisions of the Workers' Compensation Law, and suggests that it is even [*3]questionable whether liability under Vehicle and Traffic Law � 388 attaches here at all.[FN1]

Section 11 of the Workers' Compensation Law provides that the liability of an employer provided in Section 10 of the statute "shall be exclusive and in place of any other liability whatsoever, to such employee . . . on account of such injury or death or liability arising therefrom." There are, of course, exceptions to this exclusive liability for employers, including: 1) where the employer fails to maintain coverage by one of the methods set forth in Workers' Compensation Law �� 10 and 50; 2) where there is an allegation of intentional tort either perpetrated by or at the direction of the employer (see e.g. Orzechowski v. Warner-Lambert Co., 92 AD2d 110); and 3) where a "grave injury," as defined in Workers' Compensation Law � 11 [FN2], is alleged. None of these exceptions are alleged to be at play in the underlying claim. Section 29 (6) of the Workers' Compensation Law further embodies the exclusivity of this remedy for situations where the employee's injury was caused by the negligence of a co-employee. The Court agrees with Claimant that this is not the case here, as inmates are not considered "employees" of the State for purposes of the Workers' Compensation Law (see Matter of Reid v New York State Dept. of Correctional Svcs., 54 AD2d 83, appeal denied 42 NY2d 808; see also D'Argenio v Village of Homer, 202 AD2d 883 [noting that inmates are not considered employees for purposes of the Labor Law, Workers' Compensation Law, or Civil Service Law]).

Claimant, rather, relies quite heavily on Section 29 (1) of the Workers' Compensation Law to support her contention that she may sue her employer. That section states, in relevant part (emphasis added):

If an employee entitled to compensation under this chapter be injured . . . by the negligence or wrong of another not in the same employ, such injured employee . . . need not elect whether to take compensation and medical benefits under this chapter or to pursue his remedy against such other but may take such compensation and medical benefits and at any time either prior thereto or within six months after the awarding of compensation . . .pursue his remedy against such other subject to the provisions of this chapter. If such injured employee . . . take[s] or intend[s] to take compensation, and medical benefits in the case of an employee, under this chapter and desire to bring action against such other, such action must be commenced not later than six [*4]months after the awarding of compensation or . . . in any event before the expiration of one year from the date

such action accrues.[FN3]

Claimant would have the Court accept an interpretation of Section 29 (1) that permits an injured worker to pursue direct action against an employer for an injury caused by a non-employee where there may be some other basis, in this case, Vehicle and Traffic Law � 388, for the employer's liability beyond the exclusivity of remedy granted to employers through Section 11 of the Workers' Compensation Law. The Court simply cannot accept Claimant's strained interpretation of the plain language of Section 29 (1). While there does not appear to be any published decision specifically addressing the meaning of "such other" in Section 29 (1), the term is used in several subdivisions of Section 29, and the Court of Appeals has addressed the meaning of "such other" in the context of a discussion of Workers' Compensation Law � 29 (4) (see Matter of Shutter v Philips Display Components Co., 90 NY2d 703). Section 29 (4), which addresses liens and offsets, provides [emphasis added]: "If such injured employee . . . proceed[s] against such other, the state insurance fund . . . or insurance carrier . . . shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case." In discussing what "such other" meant within the context of the statute, the Court stated:

The term "such other" relates back to the earlier mention in section 29 (1) of the person whose "negligence or wrong" causes the claimant's harm. Together, these terms indicate that the lien and offset tools may be applied only against recoveries from the third-party tortfeasors who are responsible for the claimant's injuries (Shutter, 90 NY2d at 708). [*5]

Upon its own reading of the statute, the Court is satisfied that this is the correct interpretation of Section 29 (1) — that an employee who is injured through the negligence of a non-employee may choose to commence an action against that non-employee in addition to receiving the benefits to which the employee is entitled by operation of the Workers' Compensation Law. There does not appear to be any reading of Section 29 (1), or Section 29 as a whole, that allows the Court to come to the conclusion that the negligent acts of a non-employee create another exception to the exclusivity of remedy provided to employers by Workers' Compensation Law � 11.

Accordingly, it is ORDERED that Motion No. M-81895 is hereby GRANTED and Claim No. 120475 is hereby DISMISSED.

Footnotes


Footnote 1:In a footnote, Defendant wonders if the State vehicle operated by the inmate was actually a "motor vehicle," as defined in Vehicle and Traffic Law � 125, because there is no evidence that the accident occurred on a public highway. At this early stage of the litigation, the Court has no evidence before it with regard to the particular vehicles involved in the accident, and so the Court makes no determination on Defendant's footnoted pondering at this time. The Court also takes no position with respect to the applicability of Vehicle and Traffic Law � 388 in any action that Claimant may pursue against the inmate driver in Supreme Court.

Footnote 2:What constitutes a "grave injury" under Workers' Compensation Law � 11 is limited to the following categories: 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.

Footnote 3:The Court takes note of the fact that the underlying claim was not commenced until the Claim was filed with the Court on or about October 17, 2011 and served upon Defendant on or about October 31, 2011, well beyond one year after the November 30, 2009 date of accrual here, which appears to raise an issue with respect to whether the claim was timely. Workers' Compensation Law � 29 (2) provides that the failure to commence an action against "such other" within the time limit provided in subdivision one operates as an assignment of any cause of action to the insurance carrier. Such failure does not operate as an assignment, however, unless the insurance carrier notifies the claimant in writing by personal service or by certified or registered mail, return receipt requested, at least thirty days prior to the expiration of the time period set forth in subdivision one. The failure to give such notice extends the claimant's time to commence an action until thirty days after the insurance carrier notifies the claimant in writing that failure to commence an action within thirty days of mailing shall operate as an assignment to the insurance carrier.

This issue is not broached by either party here, and so the Court will presume that the State Insurance Fund, the insurance carrier here, failed to ever give notice of the assignment of the underlying claim. The Court will further presume that commencement of the claim here, which occurred nearly two years after the date of accrual, was timely.