Plaintiff, a 40 year-old, undocumented immigrant from El Salvador, was working off the books for a roofing contractor when he fell through a hole in the first floor of a one family home he was working in. The fall fractured a thoracic vertebra injuring his spine rendering him a paraplegic. Suit was started against the owner of the property and two general contractors. The owner and contractors impleaded the plaintiff's employer for indemnification and contribution.
WRSMH attorney, Ken Halperin, conducted numerous depositions attempting to establish who controlled the work site. At the conclusion of discovery, Ken moved for Summary Judgment which was granted under Section 240 of the Labor Law against the owner. One of the contractors also obtained Summary Judgement and that claim was dismissed. The case proceeded to trial against the owner and the remaining contractor together with their claims for indemnification and contribution against the employer. Under New York State Law an injured party is not allowed to sue his employer, but the employer can be liable to the main defendant for any part of the judgement for which the defendant is responsible because of imposition of strict liability under the Labor Law for the employer's conduct.
While a judgement could have been collected against the uninsured homeowner, it was much easier to have the employer pay the owner who would then pay the plaintiff because the employer had unlimited coverage. This "pass -through" to the employer is permitted only if the owner could satisfy the judgment first.
Phil Russotti tried the case and took the position during jury selection that the employer was primarily at fault because he controlled the work site and was negligent for not covering the hole through which the plaintiff fell. The defendants squabbled between themselves as to whether the owner or contractor had any independent liability.
Ken had the plaintiff evaluated by a vocational rehabilitation expert who claimed that because of plaintiff's illiteracy in English and Spanish and physical limitations from his injuries, he was totally unemployable. An economist projected loss of earnings for the remainder of his prospective work life. We also had a life care planner prepare an evaluation of plaintiff's medical, therapeutic and equipment needs for the balance of his life. Although plaintiff was independent for activities of daily living, he had obviously suffered a grievous injury.
Settlement negotiations began between the four attorneys during jury selection, which consumed one week, and continued for two days before the trial judge. This finally resulted in a $8,200,000.00 settlement for the plaintiff wherein the employer's insurance company paid $7,000,000.00 plus a waiver of approximately $150,000.00 Worker's Compensation lien, the owner paid $500,000.00, the contractor remaining in the case $500,000.00 and the contractor that had been dismissed from the case contributed $200,000.00 (to avoid an appeal of his dismissal). This outstanding result was achieved though the combined efforts of WRSMH attorneys Ken Halperin and Phil Russotti.