On March 19, 2019 the Appellate Divison of New York’s Supreme Court ruled that the materials held by and created by a third-party observer to an independent medical evaluation were protected by litigation privilege. The observer, a service called “IME Watchdog” was hired by the plaintiff’s counsel in a civil action. The service describes itself as “a weapon against insurance companies and their hired gun IMEs.”
This is a case of first impression in New York and can be found atMarkel v. Pure Power Boot Camp. In Markel, the plaintiff appeared for a physician exam with an IME doctor chosen by the defense. The plaintiff’s attorney hired a person from IME Watchdog to be present. The defense then served a subpoena on the IME Watchdog service seeking notes, reports, and other materials. The IME Watchdog ultimately prevailed in having the subpoena quashed as the court found that the qualified litigation privilege applied.
The court ruled that the materials (including the notes and reports created by the IME Watchdog and which were the subject of the subpoena) were created in preparation for litigation. The court found that the IME Watchdog was an agent of plaintiff’s attorneys and therefore the materials were protected under CPLR 3101(d)(2).
The Workers’ Compensation “Bar” on Civil Exposure.
In New York, an employer’s liability for a work-related injury is generally limited to payment of wage loss (indemnity) and medical benefits under the Workers’ Compensation Law (WCL). The WCL prevents an injured worker from suing his employer for his work-related injury, except in cases where the worker sustained a grave injury. It would seem to make sense that a worker who sustained a grave injury would be able to recover more than just Workers’ Compensation benefits given the seriousness of his injury. However, in order for this to happen, there must be a third-party action, wherein a third-party tortfeasor is being sued, and this third-party tortfeasor seeks contribution or indemnification from the employer. Otherwise, if there is no third-party action, the worker cannot directly sue his employer, even if he sustained grave injuries. Continue reading Grave Injuries: When A New York Employee Can Recover From His Employer Outside of Workers’ Compensation
In September 2012, Fredy Ucelo, then a 17-year-old illegal immigrant, was working at El Nuevo Bodegon in Paterson, New Jersey. Ucelo was operating a table-mounted meat-grinding machine when he lodged his right, dominant, hand within the machine’s metal teeth. After failed surgical intervention, Ucelo was ultimately left with his arm amputated just below the elbow. After undergoing surgery, Ucelo struggled balancing the weight of the initial mechanical prosthesis he was provided. Ucelo then rejected the use of a second mechanical prosthesis — a fairly common occurrence in scenarios where children and young adults lose an appendage.
Ucelo’s counsel admitted that Ucelo was within the course and scope of employment at the time of the incident in dispute’s occurrence; and filed for workers’ compensation benefits. The insurance carrier for the store that employed Ucelo accepted Ucelo’s claim as compensable. However, Ucelo’s attorneys filed suit in The Superior Court of New Jersey, Essex Vicinage. The suit alleged that the machine Ucelo was using was missing a guard for its opening. Furthermore, the suit claimed that the task Ucelo was performing was prohibited for minors by both federal and state statutes due to its being deemed a “potentially hazardous task.” Continue reading Undocumented Status Not A Bar to Recovery in New Jersey
In a previous post, we discussed the process of Loss Transfer and specifically why it matters to Workers’ Compensation carriers. In connection with the Workers’ Compensation aspect, a workers’ compensation carrier can recover up to $50,000.00 by way of arbitration in a Loss Transfer claim through the Arbitration Forums. However, this does not mean that you can simply assert a right to $50,000.00 against another insurance company and think this is enough. Indeed, when arbitrated, liability still has to be proven as well as damages. Continue reading Limits to Recovery in a New York Loss Transfer Claim.
In a case decided August 12, 2008, the Appellate Division held that where a personal injury protection benefits insurer has paid benefits to its inured, it is entitled to reimbursement of those benefits from the insurance proceeds of a third-party tortfeasor pursuant to N.J.S.A. 39:6A-9.1, even if the limits of the tortfeasor’s insurance policy are insufficient to make the insured whole. In Fernandez v. Nationwide Mutual Fire Insurance Company, which is approved for publication, the court resolved a perceived conflict between two prior opinions on this topic. Specifically, the court found that IFA Ins. Co. v. Waitt — often relied upon by injured parties for the proposition that their recovery preempts a PIP carrier’s reimbursement action — holds only that recovery cannot be had against the tortfeasor’s liability insurer for more than its policy limits. The court further held that Knox v. Lincoln General Ins. Co. controlled and requires that the PIP carrier take priority over the injured party in recovering from the tortfeasor.
As a practical matter, this case should be cited by any PIP carrier seeking reimbursement for payments, especially when there is resistance on the basis that there is a pending personal injury case. The Appellate Division has made clear that there is no reason for a PIP reimbursement arbitration to await the outcome of the underlying tort case.
In the case of Bolz v. Bolz, a published opinion relapsed in May 2008, the Appellate Division examined the combined effect of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3; the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5; and the Comparative Negligence Act (CNA), N.J.S.A. 2A:15-5.1 to -5.17, when there is a collision between a private automobile and an automobile that is owned by a public entity and driven by a public employee. It was held that despite the fact that a public entity is not liable to pay damages unless plaintiff sustained a permanent injury as defined in the TCA, both drivers are deemed “tortfeasors” if they are found to have been negligent and their negligence was a proximate cause of the accident.
Therefore, allocation or apportionment of each driver’s negligence or fault must be assessed, even if there is a possibility that the public entity may not be liable for damages. Put a different way, although no damages can be awarded against a public entity or employee for pain and suffering if the injuries caused by an accident do not meet the threshold set by the TCA, the public employee is, nonetheless, a tortfeasor pursuant to JTCL and the CNA and this affects the judgment against the private tortfeasor.