The defendant customer correctly points out that New York permits alleged tortfeasors to protect themselves against absorbing costs of injuries brought about in whole or in part by employers of an accident victim. See generally Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Cooney, supra. While this has occurred to date by permitting third party claims against employers, it could also be achieved by permitting a defendant in a tort case to deduct an employer's portion of fault from any award against a tort defendant where the employer has provided workers' compensation.
Subtraction of the share of a non-party from fault allocated to others is traditional in New York and elsewhere; hence this result might logically obtain under New York law were it applicable. See In re Eastern and Southern Districts Asbestos Litigation, 772 F. Supp. 1380, 1399-1406 (E & SDNY 1991), aff'd, 971 F.2d 831 (2d Cir 1992); Kelly v. Long Island Lighting Co, 31 N.Y.2d 25, 29, 334 N.Y.S.2d 851, 854, 286 N.E.2d 241, 242-43 (1972); Gannon Personnel Agency v. City of New York, 57 A.D.2d 538, 394 N.Y.S.2d 5, 393 N.Y.S.2d 915 (1977).
While the result may be that the employee receives a lesser amount in the event of a tort recovery (consisting of the difference between the employer's share of any fault and the amount of workers' compensation received), than would otherwise be the case the interests of all parties are respected. The employee receives the certainty (and at times the speed) of no-fault workers' compensation payments together with the portion, if any of tort damages, allocable to fault on the part of non-employer defendants (here, the shipper and customer).
While I conclude that summary judgment should be granted dismissing the third party complaint against the employer for these reasons, I condition this upon the employer furnishing witnesses, documents or other information which it would be expected or required to produce at trial. This will enable other parties to establish what portion of fault, if any, in connection with the accident was attributable to the employer.
I am also concerned by references in the papers before me to Gray having been fired by the employer for failure to report his receipt of workers' compensation benefits. The only obvious significance would appear to be in connection with the case now before me. I request
the employer to reconsider its dismissal of Gray and to inform me of the result.
The shipper argues that it is immune from liability because it did nothing unusual in loading the truck, and the customer was aware of the method utilized. No information concerning the safety record and advantages or disadvantages of different methods of placing loads of the kind involved here on vehicles, either involving the shipper or in the industry, has been furnished. Under these circumstances, it is impossible at present to determine that no genuine issue of material fact exists with respect to the shipper's behavior.
The shipper further argues that the employer (the trucking company) is liable to it for attorneys' fees and any damages assessed against it pursuant to an indemnity agreement. Such a contractual indemnity might permit the shipper to bypass the employer's workers' compensation defense. See Smith v. Illinois Central RR Co., 263 F. Supp. 70 (ED Tenn 1967).
The agreement here provides that the carrier [employer] "agrees to indemnify and hold harmless SHIPPER from any and all liability arising out of the performance and fulfillment of this contract except acts of negligence or omissions constituting negligence by agents servants, or employees of SHIPPER " (emphasis added).
Under this language the employer is only liable to the shipper if the shipper's liability is not based on its negligence. The shipper, however, can only be liable to the plaintiff (Gray) if its loading of the cargo onto the truck leading to the accident involved here was negligent, and the indemnity does not cover costs or liability caused by such negligence. Accordingly, the indemnity clause is inapplicable to this case.
I direct the parties to consider alternative means of resolving the underlying question raised by the shipper's motion and the balance of unresolved issues in this litigation, including:
(a) Settlement of the entire case by all parties with or without outside assistance.
(b) Use of a court-appointed expert either with regard to the factual responsibility for causing the accident of the shipper, or that of all parties to the case including the employer, pursuant to Fed.R.Evid. 706, see Reilly v. United States, 863 F.2d 149, 154-61 (1st Cir 1988); Shea v. Road Carriers Local 707 Welfare Fund, 818 F. Supp. 631 (SDNY 1993).
Dated: White Plains, New York
October 25, 1993
VINCENT L. BRODERICK, U.S.D.J.