Fourth Department Protects a Portion of the Claims File Including Information Related to Reserves and Pre-Litigation Legal Opinion from Carrier’s Counsel
In Celani v Allstate Indem. Co., 2017 NY Slip Op 07799 (4th Dept. 2017), the plaintiff, individually and on behalf of her infant daughter, commenced suit seeking damages for injuries sustained by her daughter in July 2010, when she was injured as a result of being accidentally shot with a gun that was owned by her father, defendant Louis Territo. The plaintiff previously filed a claim on her daughter’s behalf with defendant Allstate Indemnity Company pursuant to a homeowner’s insurance policy issued to the father.
Allstate disclaimed coverage on the ground that the policy excluded coverage for “bodily injury” to an “insured person,” and that the daughter was an “insured person” because she was a relative of the policyholder, her father, and a “resident” of his household. The plaintiff alleged in the amended complaint that her daughter’s injuries were caused by the father’s negligence and, pursuant to the terms of the insurance policy, Allstate had agreed to indemnify the father for bodily injury.
Thereafter, the plaintiff moved to compel disclosure of Allstate’s entire claim file, including a legal opinion prepared by Allstate’s outside counsel and a claim investigation manual prepared by Allstate’s employees. Allstate cross-moved for a protective order preventing disclosure of pre-disclaimer claim notes containing statements made by the father, the legal opinion of outside counsel and pre-disclaimer claim notes related thereto, pre-disclaimer claim notes containing information about Allstate’s reserves, and the claim investigation manual. The court granted the plaintiff’s motion to compel in its entirety and denied the defendant’s cross motion.
On appeal, the Fourth Department found that the court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father, holding that they constituted accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation.
However, the appellate court also held that the trial court abused its discretion in granting the portion of the plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying the part of defendant’s cross motion seeking a protective order with respect to those items, as they were prepared by an attorney, are primarily and predominantly of a legal character, and made to furnish legal services. Therefore, they are privileged and not discoverable.
The Fourth Department further found that the court abused its discretion in granting the part of the plaintiff’s motion seeking disclosure of Allstate’s reserve information and denying that part of the defendant’s cross motion with respect thereto inasmuch as that information was not material and necessary to the action, and outside the scope of CPLR §3101(a).
Finally, the Court held that the court abused its discretion in granting the part of the plaintiff’s motion seeking disclosure of the defendant’s claim investigation manual and denying that part of the defendant’s cross motion with respect thereto without first conducting an in camera review, as it was not readily apparent whether it contained information material and relevant to the issues to be decided in the action.
Lack of Evidence Prevents Finding of Storm in Progress
In Wrobel v Tops Mkts., LLC, 2017 NY Slip Op 07854 (4th Dept. 2017), the plaintiff brought suit to recover damages after she slipped and fell in the defendant’s parking lot. The defendant brought a summary judgment motion based on the storm in progress doctrine. The trial court denied defendant’s motion, and the Fourth Department affirmed. The Fourth Department stated that because of the plaintiff’s testimony that it was not snowing at the time of her fall, and the fact that defendant’s expert meteorologist offered only conclusory opinions with no evidentiary basis in the record, the defendant failed to meet its initial burden of establishing that plaintiff’s injuries were caused by a storm in progress.
Inasmuch as defendant failed to meet its initial burden, the burden never shifted to plaintiff to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition.
Defendant Had No Control Over Plaintiff’s Work in Labor Law Case
In Knab v Robertson, 2017 NY Slip Op 07822 (4th Dept. 2017), the New York State Thruway Authority (Authority) hired Oakgrove Construction, Inc. (Oakgrove) to work on the thruway, including repaving a section thereof, and the Authority hired defendant Foit-Albert Associates, Architecture, Engineering and Surveying, P.C. (Foit-Albert) to inspect Oakgrove’s work. Foit-Albert subcontracted some of that work to plaintiff’s employer. Oakgrove began to perform drainage and clearing work in August 2010, but suspended the work in late November for the winter shutdown period. Oakgrove removed all of its equipment and employees from the work site, and all lanes of the thruway in the area of the proposed construction were opened. Before suspending its work, Oakgrove noted that some of the elevation measurements provided by the Authority were incorrect. Foit–Albert, whose contract with the Authority stated that its inspection responsibilities also included surveying, assigned plaintiff to take new measurements, including during Oakgrove’s winter construction hiatus. In December, plaintiff was taking those measurements when a vehicle operated by defendant Drew Robertson left the roadway and struck him. Plaintiff brought suit, asserting claims under Labor Law §§ 200 and 241(6) as well as a common-law negligence cause of action against Oakgrove.
Oakgrove brought a motion for summary judgment, asserting that it was not responsible for supervising or controlling the plaintiff’s work, as Oakgrove had only contracted with Foit-Albert in that manner, not plaintiff’s employer. The trial court denied Oakgrove’s motion but the Fourth Department reversed holding that Oakgrove established, as a matter of law, that it had no control over plaintiff or the work he was performing. The plaintiff failed to raise a triable issue of fact on that issue.
The Fourth department noted that under Labor Law § 241, while “owners and general contractors are generally absolutely liable for statutory violations ․, other parties may be liable under th[at] statute[ ] only if they are acting as the ‘agents’ of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury.” Walsh v. Sweet Assoc., 172 A.D.2d 111, 113 (3rd Dept. 1991), lv denied 79 N.Y.2d 755 (1992). The owner or general contractor is not synonymous with the prime contractor ․ Generally speaking, the prime contractor for general construction (especially in State construction projects) has no authority over the other prime contractors unless the prime contractor is delegated to work in such a manner that it stands in the shoes of the owner or general contractor with the authority to supervise and control the work.
Oakgrove and Foit–Albert were both prime contractors, and plaintiff’s employer contracted only with Foit–Albert. Oakgrove did not supervise or instruct plaintiff. Rather, plaintiff reported to a supervisor at Foit–Albert. Oakgrove established as a matter of law that it had no control over plaintiff or the work he was performing, and plaintiff failed to raise a triable issue of fact
Further, the Court found that Oakgrove did not have control over the work site at the time of plaintiff’s accident, nor did Oakgrove create or have actual or constructive notice of the dangerous condition of the work site, thereby establishing a basis to dismiss the claims made under Labor Law § 200 as well as a common-law negligence.
Defendants’ Motion for Summary Judgment Granted in Labor Law Case
In Horton v Board of Educ. of Campbell-Savona Cent. Sch. Dist., 2017 NY Slip Op 07806 (4th Dept. 2017), the plaintiff, a journeyman electrician, was employed by a subcontractor hired to perform renovation work on Campbell-Savona High School. On the day of the accident, the plaintiff and a coworker were instructed by their foreman to move two heavy switchgear segments from a loading dock to a room in the basement of the school. The plaintiff and his coworker lifted a segment off of the cart with one of them positioned on each side of the segment, while the foreman secured the base. As the plaintiff and his coworker were lifting the segment from an angled to an upright position, the plaintiff felt a sharp pain in his back when the segment dropped or “rock[ed]” approximately half an inch on his coworker’s side and, for a “split second,” the weight of the segment felt unstable and increased in plaintiff’s hands. Plaintiff and his coworker did not drop the segment and, after a momentary pause, they continued to raise it to an upright position. The plaintiff brought suit under Labor Law §240(1) alleging that his injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
At the trial level, both parties moved for summary judgment, and those motions were denied. On appeal, the Fourth Department modified the order and granted defendants’ motion. The Court found that the plaintiff was injured while lifting the heavy switchgear segment when the weight thereof momentarily shifted to his side as a result of instability or a slight downward movement of half an inch on the coworker’s side. Although the plaintiff’s back injury was tangentially related to the effects of gravity upon the switchgear segment that he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law §240(1). The Court concluded that defendants established as a matter of law that plaintiff’s injuries resulted from a “routine workplace risk” of a construction site and not a “pronounced risk arising from construction work site elevation differentials”
Questions Relative to Whether a Roadway has One or Two Functional Lanes Raises a Question of Fact Relative to a Summary Judgment Motion
In Jackson v City of Buffalo, 2017 NY Slip Op 07798 (4th Dept. 2017), the plaintiff brought suit seeking to recover damages for injuries that he sustained while he was a passenger in a vehicle driven by his wife, the third-party defendant. Defendant Jason Austin was operating a dump truck with an attached trailer, both of which were owned by defendant City of Buffalo. Mr. Austin and the third-party defendant were traveling in the same direction on Eggert Road, when Mr. Austin turned right and collided with the vehicle driven by the third-party defendant, which was to his right.
Defendants City of Buffalo and Jason Austin moved for summary judgment. The Trial Court denied the motion, and the Fourth Department affirmed on appeal. Although the defendants submitted the expert affidavit of an engineer who opined that there is only one lane of travel in each direction on the portion of Eggert Road where the accident occurred, the defendants also submitted the deposition testimony of plaintiff, third-party defendant, and Mr. Austin, each of whom testified that two cars can fit side-by-side each way on that portion of road, thereby functionally creating two lanes in the same direction from a single lane. Moreover, the plaintiff further testified at his deposition that the vehicle in which he was riding was positioned on the right side of Mr. Austin’s dump truck, and that Mr. Austin did not activate his turn signal before turning. The Court therefore concluded that there were issues of fact as to whether the road had one or two lanes of travel in each direction and whether Mr. Austin made an improper right turn from the left lane.
No Summary Judgment for Defendant in Slip-And-Fall
In Dolinar v Kaleida Health, 2017 NY Slip Op 07832 (4th Dept. 2017), the plaintiff brought suit seeking damages for injuries she sustained when she allegedly slipped and fell in a puddle in a hallway that had just been mopped in a building owned and maintained by the defendant. The defendant brought a motion for summary judgment, and the trial court denied the motion.
On appeal, the defendant argued that the wet condition of the floor was readily observable and the plaintiff was aware that the floor was wet. The Fourth Department affirmed the trial court’s holding, stating that the open and obvious nature of the defect concerns only the issue of plaintiff’s comparative negligence, and does not negate defendant’s duty to keep the premises reasonably safe. The defendant also failed to establish that it did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor sufficient to create a puddle.