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Ordonez v. Lovelace

February 12, 2007

KLINGER ORDONEZ, PLAINTIFF,
v.
LOVELACE, INC., DEFENDANT,
LOVELACE, INC., THIRD-PARTY PLAINTIFF,
v.
CEDAR DESIGN, INC. AND NEWBRIDGE COVERAGE CORP., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

Plaintiff Klinger Ordonez brings this diversity action against Lovelace, Inc. ("Lovelace"), a general contractor, alleging common law negligence and violations of N.Y. Labor Law. Ordonez alleges that defendant's failure to provide the proper protective equipment was a proximate cause of his fall and resulting injuries. Lovelace, in turn, has filed a third-party complaint against Cedar Design, Inc. ("Cedar Design"), a subcontractor and Plaintiff's employer, for Cedar Design's failure to obtain liability insurance coverage as required by an agreement between Lovelace and Cedar Design. Lovelace has also named Newbridge Coverage Corp. ("Newbridge"), its insurance broker, as a Third-Party Defendant for the negligent breach of its contractual and fiduciary duties for allegedly misrepresenting Lovelace's insurance coverage. In its answer to the third-party complaint, Cedar Design asserts a cross-claim for breach of contract and negligence against Newbridge.

Presently before the court is Plaintiff's motion for summary judgment, pursuant to Fed. R. Civ. P. 56, solely on the issue of liability under N.Y. Labor Law § 240 (1). Separately, Third-Party Defendant Newbridge moves for summary judgment against Lovelace and Cedar Design. For the reasons set forth below, Plaintiff's motion for summary judgment on the issue of liability is granted. Third-Party Defendant Newbridge's summary judgment motion against Lovelace is denied; however, its motion against Cedar Design is granted.

Background

The Accident

In early 2002, Lovelace, a general contractor, was hired by the owners of 77 Hasley Lane, Watermill, New York (the "Premises") to renovate a three-story house.*fn1 (Lovelace Dep. 5, 11.) Eric Lovelace is the sole owner, officer, and employee of Lovelace, Inc. (Id. at 4--5.) As the general contractor, Lovelace oversaw and managed the renovation and retained Cedar Design to install new roofing and siding on the Premises. (Id. at 12, 16.) At all relevant times, Plaintiff was an employee of Cedar Design.

On August 15, 2002, the day of the accident, Plaintiff was affixing shingles to the Premises. The "scaffolding" upon which he was standing consisted of a wooden plank measuring ten feet long and two feet wide. (Villata Aff. ¶ 4.) The ends of this wooden plank each rested on extension ladders. Plaintiff checked the ladders to make sure they were secure. (Ordonez Dep. 19.) At the time of the accident, Plaintiff was working at a height of about twenty feet. (Villata Aff. ¶ 4.)

Immediately before the accident, Plaintiff was hammering when suddenly "everything fell down." (Ordonez Dep. 15.) No harnesses, lanyards, pulleys, or ropes were provided or available at the site, nor were such safety devices expressly required. (Id. at 19; Villata Aff. at ¶ 5; Lovelace Dep. 74.)

Luis Villata, a co-worker, did not witness the accident since he was working on another part of the Premises. However, after hearing a crashing sound, Villata went to where Ordonez had been working and saw Plaintiff lying on the ground. The extension ladders and the board upon which Plaintiff had been standing were also on the ground nearby. (Villata Aff. ¶ 4.) When Villata returned from the hospital to the job site, the board and ladders had been removed and neither he nor Plaintiff could state whether the wooden plank had snapped or whether the ladders had failed. (Ordonez Dep. 17.) Villata corroborates Ordonez's testimony that no scaffolds, mechanical lifts, safety harnesses or safety lines were available at the job site. (Villata Aff. at ¶ 5.)

Defendant Lovelace admits that it never addressed job site safety with the employees of Cedar Design, or any other subcontractors for that matter, and also admits that Lovelace did not require the use of any safety devices on the job site. (Lovelace Dep. 73--74.)*fn2

The Insurance Negotiations

Upon securing the contract to renovate the Premises, Lovelace contacted Edward Palace, an insurance broker at Newbridge, to obtain insurance coverage for the project. (Lovelace Dep. 28.) Eric Lovelace alleges that he requested insurance coverage in the amount of two million dollars, stating that he needed coverage "from head to toe." (Id. at 28.) Eric Lovelace also alleges that he specified his company's need for insurance to cover "subcontractors on the job." (Id. at 53, 71.) Newbridge procured an insurance policy for Lovelace from the Essex Insurance Company and contacted Eric Lovelace, who expressed surprise at the cost of the insurance premium. Palace allegedly explained that the insurance premium was expensive because "once in a while you have a subcontractor or somebody on the job if they got hurt this would cover them." (Lovelace Dep. 53:4--5.)

After the accident, Essex Insurance Company denied Lovelace coverage citing a provision in the insurance policy excluding subcontractors from coverage. (Lesser Decl. ¶ 4, 10; Ex. D.) Defendant Lovelace did not bring suit against Essex Insurance Company and does not contend that the Essex Insurance Company improperly denied its claim for coverage. However, Lovelace contends that because it specifically requested liability insurance coverage for sub-contractors and relied on Newbridge to procure such coverage, Newbridge is now liable.

Newbridge claims that because Lovelace did not specifically request general liability insurance coverage for subcontractors, it owed Lovelace no more than the common law duty to obtain the insurance coverage that Lovelace requested. Further, Newbridge argues that Lovelace is presumed to have knowledge of the terms of its insurance coverage and ...


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