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KLINE v. E.I. DUPONT DE NEMOURS & CO.

July 16, 1998

RAY W. KLINE and DOROTHY M. KLINE, his spouse, Plaintiffs,
v.
E.I. DuPONT DE NEMOURS & CO., INC., et al., Defendants.



The opinion of the court was delivered by: ARCARA

DECISION AND ORDER

 INTRODUCTION

 This case was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1) on June 24, 1997. On August 18, 1997, third-party defendant The Goodyear Tire & Rubber Company filed a motion for judgment on the pleadings or for summary judgment. On March 17, 1998, Magistrate Judge Foschio filed a Report and Recommendation, recommending that third party defendant Goodyear's motion for judgment on the pleadings or, alternatively, for summary judgment, should be granted.

 Defendants filed objections to the Report and Recommendation on April 29, 1998. Oral argument on the objections was held on June 19, 1998.

 Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Moreover, the Court writes separately to address cases decided after this motion was submitted for the Magistrate Judge's consideration.

 A. Recent Developments

 On May 12, 1998, the Court of Appeals of New York decided Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 696 N.E.2d 978, 673 N.Y.S.2d 966, 1998 WL 248915. In Majewski, the plaintiff was injured and filed suit, and the third-party defendant was impleaded, prior to the effective date of the Omnibus Workers' Compensation Reform Act of 1996 ("the Act"). The Court of Appeals determined that the Act did not apply to actions, such as Majewski's, that were pending on the effective date of the Act.

 In reaching this holding, the Court of Appeals examined the text of the Act and found that language stating that the Act was to "take effect immediately" did not indicate that the Act was to apply to actions filed prior to the Act's effective date. The Court of Appeals also examined the legislative history of the Act and determined that the various statements made by legislators and Governor Pataki were inconclusive with respect to the question of retroactivity. Finally, the Court of Appeals analyzed the Act's purpose and found that it was best served by a prospective application of the Act.

 The Court of Appeals held that the Act would not apply in that case as it was filed prior to the Act's effective date. Significantly for the present case, the Court of Appeals summarized its holding at the end of the decision as follows:

 
We conclude that, irrespective of the date of the accident, a prospective application of the subject legislation to actions by employees for on-the-job injuries against third parties filed after the effective date of the relevant provisions is eminently consistent with the overall and specific legislative goals behind passage of the Act.

 Id. at 590, 1998 WL 248915 at *6 (emphasis added). The Court of Appeals included the phrase "irrespective of the date of the accident" despite the fact that in its lengthy analysis of the statute's retroactivity, it had not discussed the significance of the date of the accident giving rise to the action. The Court of Appeals' decision instead seems to place primary importance on the date of the filing of the action.

 The Second Department decided Zurheide v. S-C Associates, 669 N.Y.S.2d 852 (N.Y. App. Div. 1998), on March 2, 1998, also subsequent to the submission of this motion to the Magistrate Judge, but prior to the Majewski decision. In that case the court, in a two-paragraph decision, stated that the Act is to be applied prospectively and thus was inapplicable "where the underlying injury occurred before the effective date of the amendment." Although Zurheide was decided shortly before the Court of Appeals' decision in Majewski, the Majewski court did not mention Zurheide in its decision.

 B. The Parties' Arguments

 In objecting to the Report and Recommendation, defendants claim that the Act's amendments do not apply where, as here, the injury occurred prior to the Act's effective date, but the action is filed after the effective date. Defendants point to the Second Department's Zurheide decision in support of this argument. Defendants also claim that this Court is not bound to follow the language in the Majewski decision finding the Act applicable "irrespective of the date of the accident" where the action is filed after the Act's effective date. Characterizing this language as dicta, defendants claim that this statement does not represent the state of the law in New York, and that the Court should look to the Zurheide decision for guidance. Moreover, defendants argue, by not expressly overruling the ...


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