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CARNLEY v. AID TO HOSPS.

August 28, 1997

MICHAEL CARNLEY, Plaintiff,
v.
AID TO HOSPITALS, INC., Defendant/Third-Party Plaintiff. v. BOEWE-PASSAT REININGUNGS-UND WASCHEREITECHNIK GMBH, E. WEIT MACHINERY CORP., and BOEWE-PASSAT DRYCLEANING & LAUNDRY MACHINERY CORPORATION, Third-Party Defendants.



The opinion of the court was delivered by: LARIMER

 BACKGROUND

 Plaintiff, Michael Carnley ("Carnley"), filed a complaint against Aid to Hospitals, Inc. ("ATH"), alleging that injuries he sustained while performing work on a laundry machine in New York were the result of ATH's negligence. Jurisdiction is based on diversity of citizenship. ATH filed a third-party complaint for indemnity and/or contribution against Boewe-Passat Reiningungs-Und Waschereitechnik Gmbh ("German Boewe-Passat"), E. Weit Machinery Co. ("Weit") *fn1" , and Boewe-Passat Drycleaning & Laundry Machinery Corp. ("Boewe-Passat"). Carnley was a Texas resident employed by Boewe-Passat, a Texas corporation, and had traveled to New York to work on the laundry machine at issue.

 There are two motions pending before the Court: (1) Boewe-Passat's motion for summary judgment seeking to dismiss the third-party complaint against it, and (2) Texas Workers' Compensation Fund ("Texas Fund") motion to intervene in the action.

 For the reasons discussed, infra, Boewe-Passat's motion for summary judgment and Texas Fund's motion to intervene are granted.

 DISCUSSION

 In his complaint, Carnley alleges that ATH was negligent for failing to maintain the laundry machine's warning devices in a safe and reasonable manner. Specifically, Carnley alleges that ATH allowed the warning devices to fall into disrepair and re-programmed the safety mechanisms so that the machine would remain operational even though the warning devices were not functioning. Further, Carnley alleges that ATH failed to warn or notify Carnley of its re-programming of the machine.

 The third-party complaint by ATH, alleging negligence and strict liability, seeks contribution and indemnity from Boewe-Passat, among others.

 I. Boewe-Passat's Motion for Summary Judgment

 Boewe-Passat moves for summary judgment and seeks dismissal of the third-party complaint against it for contribution and indemnity. Boewe-Passat correctly asserts that Texas law precludes such actions. The Workers Compensation Law of Texas prohibits claims against employers for injuries sustained by their employees whether the claim is brought directly by the employee or by a third-party seeking contribution or indemnity. Tex. Lab. Code Ann. § 417.004.

 Boewe-Passat contends that Texas law should apply on the facts of this case and the action be dismissed. Alternatively, Boewe-Passat suggests that even if this Court were to apply New York law, the recent amendment to New York's Workers Compensation Law barring such actions against employers should control, even though that legislative change took effect after plaintiff's injuries and the commencement of this action.

 Before dealing with the merits of the conflict-of-laws issue, there is a procedural matter raised by ATH in opposition to Boewe-Passat's motion. ATH contends that Boewe-Passat's motion raises an affirmative defense to the third-party complaint and must, therefore, be pleaded in Boewe-Passat's answer. ATH contends that because Boewe-Passat failed to assert this affirmative defense in its answer, it has waived the defense and may not raise it now in this summary judgment motion.

 Although I agree with ATH that the matter raised by Boewe-Passat is an affirmative defense, I believe that the answer can now be amended and the merits of the defense considered here on summary judgment.

 In determining whether a claim is an affirmative defense, federal courts sitting in diversity actions should look to state law. See Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1540-1541 (2d Cir. 1997). Matters treated as affirmative defenses under state law are generally treated in the same way by federal courts in diversity cases. Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir. 1991). In the present case, whether New York law or Texas law is applied to determine whether Boewe-Passat's workers' compensation defense constitutes an affirmative defense, the outcome is the same. In both New York and Texas, in a civil action for personal injuries, the existence of workers compensation is an ...


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