Wade Clark Mulcahy LLP

<p style="text-align: justify;">Judge Gerald Lebovits, New York County Supreme Court, recently ruled in favor of plaintiff-insurer Utica Mutual on its motion for summary judgment that its policy was not triggered, finding the policy exclusion for liability assumed in a contract to be unambiguously applicable to claims for contractual indemnification in the underlying lawsuit, but also that the underlying plaintiff could not be said to have suffered any “grave injury” as that term is defined in the Workers Compensation law, based upon the plaintiffs’ representations about his injuries as set forth in the bill of particulars (as supplemented) filed in that action.</p>
<p style="text-align: justify;">By way of background, Utica had issued a Workers Compensation and Employers’ Liability policy to defendant Litric Contracting. The plaintiff in the underlying action, Ivan Condo, was a Ltiric employee, injured during a construction site accident after falling from a ladder. The Court quickly dispensed with the issue of insurance coverage for any contractual indemnification claims asserted against Utica’s insured, Litric, holding that the exclusion barring any coverage for “liability assumed [by the insured] in a contract” was properly advanced by Utica. However, under the Workers Compensation policy, Utica would owe coverage for any common law indemnification and contribution unless the insurer could establish that the Condo did not sustain a “grave injury”.</p>
<p style="text-align: justify;">Condo’s bill of particulars described his alleged injuries as including injuries to the right and left shoulders, the right and left knees, as well as to the lumbar and cervical spine. However, as Utica argued in its motion for summary judgment, Plaintiff Condo testified at his deposition that he was able to “raise and lower” both arms, and to walk with a cane. Thus, Utica asked the Court to determine that Condo did not suffer a grave injury as a matter of law. Defendant Litric argued that discovery concerning the extent and severity of Condo’s injuries was still needed in order to conclusively determine the extent of the injuries, but the Court disagreed.</p>
<p style="text-align: justify;">Ultimately, the Court held that based upon the Plaintiffs’ bill of particulars, Utica had successfully satisfied its prima facie burden to demonstrate that no grave injury had been suffered, noting that while the Condo identified serious injuries, he had not set forth any permanent and total loss of use of any extremity, or a total, permanent disability. While the Court noted the deposition testimony cited by Utica describing, the Court’s decision hinged upon the failure of the bill of particulars to set forth injuries that constitute a grave injury.</p>
<p style="text-align: justify;">Thus, this case is a good reminder for WC insurers to scrutinize a bill of particulars, as they did here, because the Court may deem further discovery unnecessary to find that the threshold for such an injury has been met as a matter of law</p>
<p style="text-align: justify;">Thanks to Vivian Turetsky for her contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>