New York Civil Law

A Great Legal Resource

Whenever someone asks me how I am constantly learning of new blogs, I tell him or her to always have to be on the lookout for them.  One of the easiest ways to find new blogs is Typepad's recently updated Weblogs list.  I found E-Law Library, a blawg on law, libraries, and research, through the recently updated list.

New York Court of Appeals Further Clarifies Repair vs. Routine Maintenance Issue Under Labor Law Section 240(1)

The New York Court of Appeals today in Beehner v. Eckerd Corp. clarified whether an activity comes within the ambit of repair -- a protected activities under Labor Law Section 240(1) -- or routine maintenance -- an activity that does not fall within the protection of New York's Scaffold law -- when a worker is injured after completing a repair and while engaging in routine maintenance.  The injured worker here fell off a scaffold after repairing a malfunctioning air-conditioning unit and while checking the serial number of the unit.  Citing Martinez v. City of New York, the Court held that it would not isolate the time of the injury, but here there was a "bright-line" dividing the protected and unprotected activities.  This case provides one more step in the case-specific problem concerning repair versus routine maintenance activities under section 240(1).

Great Contracts Blawg

I discovered ContractsProf Blog while on Typepad's Website.  The blawg focuses on -- surprise -- contract law.  The content is not confined to the contract issues we think of from law school.  ContractsProf Blog is a vibrant Weblog full of issues concerning contract law, with a great mix of scholarly posts, historical references, and even pop culture mentions.  It is part of the Law Professor Blog Network (I wish blogs were around when I attended law school).

New York Court of Appeals Decides Certified Question About Attorneys' Fees in Discrimination Case

The New York Court of Appeals' recent decision concerning a certified question on attorneys' fees in a discrimination action has received a lot of press.  The following are articles concerning the Court's holding that the attorneys' fees were warranted in the case even though the jury awarded the plaintiffs nominal damages: New York Newsday has this article; and this great excerpt in NY Lawyer.

New York Court of Appeals Will Hear Important Issue Concerning Workers' Compensation Law Section 11

The New York Court of Appeals granted leave to appeal last week in a matter involving the requirements for contractual indemnification between a defendant/third-party plaintiff and an injured worker's employer under Workers' Compensation Law Section 11 (see Court's entry here).  The Court will review the Appellate Division, Third Department's decision in which it rejected the defendant/third-party plaintiff's contract for indemnification with the injured worker's employer because it did not expressly or unambiguously state that the subcontractor (insurer's employer) required to indemnify the general contractor for the injuries of the subcontractor's employees incurred within the scope of their employment (see prior post about the decision). 

The Court's decision will affect a large number of contracts within the Labor Law context, and if it upholds the Third Department's decision, a new form contract for contractual indemnification will need to be drafted.

New York Court of Appeals Determines Split at Appellate Division Concerning Interpretation of "Permanent Total Disability" As Set Forth in Workers' Compensation Law Section 11

The New York Court of Appeals today determined in Rubeis v. Aqua Club Inc. (see prior post) that the "grave injury" set forth under Workers' Compensation Law Section 11 as "an acquired injury to the brain caused by an external physical force resulting in permanent total disability" essentially means that the injured worker is no longer employable in any capacity.  The Court rejected the view that the particular "grave injury" required that the injured worker be in a vegetative state, a view which Judge Read adopts in her dissent.

Appellate Division, Third Department Clarifies Repair vs. Routine Maintenance Under New York's Scaffold Law

Davidson v. Ambrozewicz

In this appeal, the Third Department held that the plaintiff's actions of ridding a commercial building of bat infestation constituted a repair as provided under Labor Law Section 240(1).  The plaintiff fell from a bucket hoist while he and his coworkers filled gaps in the building and performed other work on the building.  Notably, the Court determined that the plaintiff's activities constituted repairs instead of routine maintenance -- a non-covered action under section 240(1)  -- because the removal of bat infestation was an isolated event.  The Court cited a case that involved the plaintiff's repeated work "jumping" cold refrigeration unit batteries that were located in tractor-trailers, noting that the work did not repair the trailers but rather constituted routine maintenance.

This case is important because it gives a glimpse into how the Third Department will analyze the often close calls in repair versus routine maintenance Labor Law cases.  The Third Department also rejected the defendant's recalcitrant work argument.

New York Attorney General Now Investigating Insurers' Use of Alternative Risk Financing Technique

New York Attorney General Eliot Spitzer has added an additional issue to his investigation into the insurance industry -- an alternative risk financing technique known as a "finite risk insurance plan."  The New York Times' Business Section article discusses this new component of his investigation (Note: Subscription Needed).

Among the insurance industry, finite risk insurance plans appear to be an accepted alternative to risk financing.  A finite risk insurance plan transfers a limited amount of risk to the insurer and usually includes a profit-sharing arrangement between the insurer and insured.

New York Court of Appeals Offers Some Advice to Insurers in Decision Concerning Section 3420 of the Insurance Law

Lang v. Hanover Ins. Co.

The New York Court of Appeals determined whether a plaintiff may commence a direct action against the insurer of the underlying tortfeasor where the plaintiff has not yet won a judgment over the underlying tortfeasor (see prior post that discussed the case and Appellate Division decision).  The Court held that Section 3420 of the Insurance Law requires the plaintiff securing a judgment over the underlying tortfeasor before commencing an action against the tortfeasor's insurer. 

Notably, the Court offered a word of advice at the end of the decision, noting that insurers should commence declaratory judgment actions against its insureds where the question of coverage is close.  It reasoned that the insurer could protect itself and inject itself early on in the matter rather than being stuck defending a declaratory judgment action against the plaintiff after he or she has secured a judgment against the underlying tortfeasor.

Even More Fallout from Eliot Spitzer's Insurance Probe

Two senior underwriters from Zurich American Insurance Company have pled guilty to charges of bid-rigging.  Here is a press release from Eliot Spitzer's office and an audioclip about the pleas from NPR.  Here is the press release from Zurich North America.