United States District Court, W.D. New York
For Scott Baxter, Plaintiff: Ernest J. Palazzolo, Jr., Richard J. Sullivan, LEAD ATTORNEYS, PRO HAC VICE, Sullivan & Sullivan, LLP, Wellesley, MA; George F. Carpinello, LEAD ATTORNEY, Boies, Schiller & Flexner LLP, Albany, NY; Joey M. Lampert, LEAD ATTORNEY, PRO HAC VICE, Boies Schiller & Flexner LLP, Fort Lauderdale, FL.
For Techtronic Industries Co., Ltd., Techtronic Industries North America, Inc., One World Technologies, Inc., Ryobi Technologies, Inc., Home Depot U.S.A., Inc., Defendants: Rosario M. Vignali, LEAD ATTORNEY, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY.
DAVID G. LARIMER, United States District Judge.
DECISION AND ORDER
Guard Insurance Group (" Guard," ) as the worker's compensation insurer for named plaintiff Scott Baxter (" Baxter" ), brings this action against Techtronic Industries Co., Ltd., Techtronic Industries North America, Inc., One World Technologies, Inc., Ryobi Technologies, Inc., and Home Depot, USA, Inc. (collectively " defendants" ). Acting as the assignee of plaintiff's claims pursuant to N.Y. Workers Compensation Law § 29(2), Guard alleges products liability and negligence claims arising from severe personal injuries plaintiff sustained due to alleged defects in a table saw designed, manufactured and/or distributed by the defendants. Guard seeks reimbursement for insurance payments made to Baxter on the worker's compensation policy and for other relief.
The defendants now move for dismissal of this action pursuant to Fed. R. Civ. Proc 12(c), arguing that Guard failed to secure a valid assignment of Baxter's claims prior to initiating the instant suit, and that the statute of limitations has since expired, such that neither Baxter nor Guard can initiate the action. (Dkt. #14) For the following reasons, defendants' motion is denied.
I. The Assignment of Baxter's Claim
Defendants contend that Guard failed to obtain a proper statutory assignment of Baxter's claim prior to its commencement of the instant action, and hence lacks standing to sue.
The applicable law is well settled. New York Workers' Compensation Law § 29(1) and (2) provides that an employee entitled to workers' compensation who is injured by the negligence of a third party may bring an action against the third party within one year after the cause of action accrues. If the employee fails to do so, " such failure shall operate as an assignment of the cause of action against [the third party] to the . . . insurer liable for the payment of such compensation, " provided that:
the insurance insurer shall have notified the claimant in writing by personal service or by certified or registered mail, return receipt requested, at least thirty days prior to the expiration of the [one year period after the cause of action accrued], that such failure to commence such action shall operate as an assignment of whatever cause of action may exist to such insurance insurer. If the insurance insurer shall fail to give such notice, the [one year period] shall be extended until thirty days after the insurance insurer shall have notified the claimant in writing that failure to commence an action within thirty days after the mailing of such notice shall operate as an assignment of the cause of action to such insurer, and in the ...