offers its contributing employers to lead to a contrary result. This is particularly true if the limitation to workers' compensation recovery applies to a Massachusetts resident.
Applicability of section 23 to statutory, as distinct from common law, claims imposed by another state in which work is performed presents questions of the extent to which the statute creates liability within the overall ambit of what would be deemed common law claims under the Massachusetts statute, and whether immunity from the statute would undermine safety policies of the state (New York) where the work was undertaken. These questions have not been fully considered by the parties, nor is it clear at this point whether any provisions of the New York Labor Law apply to the facts of this case.
The impact of these principles on the defendant property owner (IBM) requires separate consideration. Inability of a New York property owner hiring a Massachusetts contractor to obtain any relief from tort damages if the contractor was actually negligent and for that reason responsible for an accident, is troublesome for at least three reasons:
(1) Such a result would defeat Massachusetts' policy that workers compensation be the method and the sole source of compensation of Massachusetts employees hired by Massachusetts contractors based upon acts of such contractors;
(2) The result might be to enhance damages collectible from the New York property owner to a level higher than if either solely Massachusetts or solely New York law were applied to all aspects of the case;
(3) As a consequence, interstate commerce in performance of construction work might be subjected to adverse discrimination contrary to the purposes of the Commerce Clause of the Constitution. See Tetra Technologies v. Harter, 823 F. Supp. 1116 (SDNY 1993).
Insofar as claims for negligence are concerned, these unfortunate results may be avoided by permitting IBM as a non-employer original defendant sued for a workplace injury, to deduct from any amount due to plaintiff, sums for which the employer would have been primarily responsible because of negligent conduct of the employer. See Gray v. Cleaning Systems, 834 F. Supp. 123, 126-27 (SDNY 1993). IBM would continue to be responsible for instructions, provision of materials, and other actions taken by it for which the employer would not be liable.
In order to permit plaintiff and IBM to contest the extent of the employer's actual responsibility, if any, dismissal of the employer as a party with respect to common law negligence claims is conditioned upon the employer furnishing witnesses, documents and other information which it would be expected or required to provide if a party. Gray, 834 F. Supp. at 127.
A more difficult problem is presented by the potential applicability of New York Labor Law 240, providing strict tort liability without fault for certain workplace accidents in the construction industry, although ignoring adjacent industries which may involve the same level of risk. Labor Law 240, although a loss-allocating provision, has been described by some lower New York courts as a conduct-regulating provision because it imposes more stringent liability for accidents and hence may have a greater deterrent effect than might flow from liability for negligence law alone. Salsman v. Barden & Robeson, 164 A.D.2d 481, 485, 564 N.Y.S.2d 546 (3d Dept 1990). Applicability of the statute to all work done in New York regardless of the domicile of the employer or employee may be important to avoid giving a competitive advantage to out-of-state contractors utilizing out-of-state workers and avoiding costs of doing business incurred by other contractors subject to New York's regulatory statute.
It is, however, premature to determine the impact of Labor Law 240 on IBM's third party complaint against the employer until it is determined whether or not section 240 is applicable to the facts of the present case.
SI's motion to dismiss on the ground of lack of involvement with the incident at issue cannot be granted at this time because SI has not yet responded to interrogatories relevant to the issues presented. Conclusory statements by an interested party with superior access to information are insufficient to support contested relief. The extent to which discovery referred to by IBM as relevant may be required prior to decision on the merits may be evaluated when and if the motion is renewed.
At the next pretrial conference, the parties should be prepared to discuss the impact on the structure of the litigation of whatever insurance coverage exists for this accident.
It is often customary for insurance policies to cover workplace accidents in such a manner as more than one party is covered by the same or a related policy, and that many sources of liability for a single event may be covered by the same policy or policies. This, in turn, frequently has a significant impact on the structure of any litigation growing out of an accident and the leeway for parties to dispense with inter-defendant litigation. See, e.g., Heggan v. PCM, 1993 WL 525120, 1993 U.S. Dist. LEXIS 17785 (SDNY 1993). The parties are directed to furnish each other and the court with copies of all policies and endorsements directly or indirectly pertinent to plaintiff's accident.
Dated: White Plains, N.Y.
September 6, 1994
VINCENT L. BRODERICK, U.S.D.J.