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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. Appeal Nos. 1, 2, and 3
Regular Panel Decision

Testerman v. Zielinski

The case involves three consolidated appeals stemming from a personal injury action and a wrongful death action after a pickup truck collided with another vehicle. Robert C. Testerman, a passenger in the pickup truck, commenced a personal injury action. Daniel D. Bigelow initiated a wrongful death action as executor of the estates of Tenny Bigelow and Douglas L. Bigelow, the occupants of the other vehicle. The collision occurred when Rachel L. Zielinski, operating a pickup owned by her employer Pisa Electrical Construction & Manufacturing, Inc., drove through a stop sign. In Appeal No. 2, the court affirmed the dismissal of Testerman's personal injury claim against Pisa, citing Workers' Compensation Law's exclusive remedy provision. However, in Appeal No. 1, the court reversed the summary judgment dismissing Testerman's claim against Daniel Bigelow, finding insufficient evidence that Tenny Bigelow used reasonable care. Similarly, in Appeal No. 3, the court reversed the partial summary judgment on liability granted to Daniel Bigelow in the wrongful death action, for the same reasons as Appeal No. 1.

Personal InjuryWrongful DeathSummary JudgmentWorkers' Compensation LawVehicle and Traffic LawAutomobile AccidentExclusive RemedyEmployer LiabilityVicarious LiabilityAppellate Review
References
7
Case No. MISSING
Regular Panel Decision
Dec 05, 1978

Sanders v. Southfield Heights, Inc.

In an action to recover damages for wrongful death, the plaintiff appealed an order from the Supreme Court, Rockland County. The order granted defendant Southfield Heights, Inc.'s motion for summary judgment, dismissing the complaint against it. The complaint alleged causes of action for negligence and wrongful death. The court found that no reasonable view of the allegations supported a claim of intentional tort. Sections 10 and 11 of the Workers' Compensation Law served as an absolute bar to the action against the respondent. Consequently, the dismissal was deemed proper, and the order was affirmed insofar as appealed from.

Wrongful DeathNegligenceSummary JudgmentWorkers' Compensation LawIntentional TortDismissalAppeal AffirmedAbsolute Bar
References
1
Case No. MISSING
Regular Panel Decision

Hirsch v. Mastroianni

In a wrongful death action, the plaintiff, Hirsch's widow, appealed an order from the Supreme Court, Suffolk County, that granted the defendant's motion for summary judgment. The lower court dismissed the complaint, ruling the action was barred by Workers’ Compensation Law § 29 (subd 6), and denied the plaintiff's cross-motion to dismiss this affirmative defense. The factual background involved co-employees Hirsch and Di Stefano, where Di Stefano shot Hirsch to death and then committed suicide. The appellate court reversed the order, finding that Di Stefano was not acting within the scope of his employment, thus making the Workers’ Compensation Law's exclusive remedy provision inapplicable. Citing Maines v Cronomer Val. Fire Dept., the court clarified that the law does not bar tort actions against co-employees for acts outside the scope of employment or for intentional torts, and an insane person is liable for their torts.

Wrongful DeathWorkers' Compensation LawCo-employee LiabilityScope of EmploymentIntentional TortNegligenceSummary JudgmentAppellate ReviewExclusive RemedyCPLR 3211
References
4
Case No. MISSING
Regular Panel Decision
Dec 31, 1989

Trevino v. Lightning Laydown, Inc.

This case involves a wrongful death and survival action following the death of Jose Trevino in a collision caused by a detached trailer. The appellants sued International Bank of Commerce (IBC) and several other defendants, who settled. A jury found IBC five percent at fault due to negligence and conscious indifference, but declined to award exemplary damages, while the settling defendants were ninety-five percent at fault. The trial court limited IBC's liability to five percent of actual damages. On appeal, the appellants argued that IBC's gross negligence should make it liable for the entire damages, contending that gross negligence is a distinct cause of action not subject to comparative negligence statutes. The appellate court affirmed the trial court's judgment, ruling that gross negligence is not a "theory other than negligence" within the meaning of Duncan v. Cessna Aircraft Co. and that the comparative negligence framework was correctly applied to reduce IBC's liability.

wrongful deathsurvival actionnegligencegross negligencecomparative negligenceexemplary damagesMary Carter settlementjoint tortfeasorsproduct liabilityappellate decision
References
18
Case No. MISSING
Regular Panel Decision

Silvas v. Bridgeview Investors, LLC

This case involves an appeal by plaintiffs in a wrongful death action. The decedent fell to his death from an unguarded sixth-floor balcony at a condominium construction site. Plaintiffs alleged violations of Labor Law § 240(1) and § 241(6) against the building owners and general contractor. The Supreme Court initially granted summary judgment to the defendants, dismissing the claims, and upon reargument, adhered to dismissing the Labor Law § 240(1) claim and fully dismissed the § 241(6) claim. The appellate court reversed the Supreme Court's order, finding that the defendants failed to provide admissible evidence that the decedent's actions were the sole proximate cause of the accident, or that the Industrial Code provision was inapplicable. Consequently, the defendants' motions for summary judgment on both Labor Law claims were denied, effectively reinstating the plaintiffs' claims.

Wrongful DeathLabor LawConstruction SiteSummary JudgmentAppellate ReviewProximate CauseFall AccidentBalcony SafetyIndustrial CodeBuilding Owners
References
13
Case No. Action No. 1; Action No. 2
Regular Panel Decision
Sep 30, 1997

Sidor v. Zuhoski

This case involves appeals from an order concerning two related actions: one for personal injuries (Action No. 1) and another for wrongful death (Action No. 2). Joseph and Gregory Zuhoski appealed the denial of their motion for summary judgment seeking to dismiss the complaint in Action No. 1. Separately, Colin Van Tuyl, as Executor of the Estate of Janet A. Van Tuyl, and Brianna and Colin Van Tuyl, individually, appealed both the denial of the Zuhoskis' motion and the granting of Martin Sidor & Sons, Inc.'s motion to amend its answer in Action No. 2. The Appellate Division affirmed the order, noting the trial court's sound discretion in granting leave to amend pleadings, particularly when the failure to deny allegations was an inadvertent mistake. Furthermore, the court found an issue of fact regarding Gregory Zuhoski's employment status at the time of the accident, which justified the denial of the Zuhoskis' motion for summary judgment.

Personal InjuryWrongful DeathSummary JudgmentAppealPleading AmendmentDiscretion of Trial CourtWorkers' Compensation LawScope of EmploymentAppellate DivisionSuffolk County Litigation
References
12
Case No. MISSING
Regular Panel Decision

Transcontinental Insurance Co. v. Walsh

Nettie Mae Walsh, the surviving wife of William Robert Walsh, filed a suit for death benefits under the workers' compensation act after her husband's death on September 6, 1977. Mr. Walsh had sustained compensable injuries on March 7, 1975, and was incapacitated until his death. Prior to his death, a third-party action for his injuries, filed by Mr. Walsh and his wife against Sears, Roebuck and Company, was settled for $352,000. Defendant Transcontinental Insurance Company, the worker's compensation insurer, intervened in that action and received $52,000 from the settlement. Transcontinental argued that it was entitled to offset the $200,000 net recovery from the third-party action against Mrs. Walsh's current death benefit claim, citing Article 8307, Section 6a, V.A.T.S. The trial court rendered judgment in favor of Mrs. Walsh, finding her total benefits to be $7,891.21. The appellate court affirmed this judgment, disagreeing with Transcontinental's interpretation of the statute, stating that Mrs. Walsh was not a 'workmen's compensation beneficiary entitled to benefits' at the conclusion of the third-party action, as a new cause of action for death benefits arose only after Mr. Walsh's death.

Workers' CompensationDeath BenefitsOffsetThird Party ActionSettlementSurvivor BenefitsTexas LawAdvance PaymentsLegal BeneficiariesCause of Action
References
3
Case No. MISSING
Regular Panel Decision

Moss v. Rista

In this wrongful death action, the plaintiff alleges that the defendant, while intoxicated, negligently caused the death of John Thornton. Both individuals were performing a moving job for Moving Man, Inc. The defendant moved for summary judgment, arguing that workers' compensation benefits provided the exclusive remedy, as both were supposedly under the 'same employ.' However, the court found that material issues of fact exist regarding Thornton's employment status (employee versus independent contractor) with Moving Man, Inc. Consequently, the defendant's motion for summary judgment was denied. The court also noted that Workers' Compensation Board determinations regarding Thornton were not binding on the plaintiff due to lack of proper notice to the estate.

wrongful deathworkers' compensationsummary judgmentindependent contractoremployer-employee relationshipintoxicationnegligenceexclusive remedymaterial issues of factappellate review
References
3
Case No. MISSING
Regular Panel Decision

P.T. & E. Co. v. Beasley

This case involves a wrongful death and survival action stemming from a fatal collision between a truck-tractor driven by appellant Wyman Lee Scroggins and a pickup truck driven by James F. Beasley. The heirs of James F. Beasley (appellees) sued Scroggins and P.T. & E. Company (appellants) for common law negligence, wrongful death, and survival statutes. The jury found Scroggins negligent and awarded damages, but the trial court initially disregarded awards for mental anguish. Appellants' points of error challenging liability, damages, and jury misconduct were overruled. Appellees cross-appealed the denial of mental anguish damages. The appellate court reinstated the jury's award for mental anguish damages for the spouse, children, and mother of the deceased, citing recent Texas Supreme Court precedent extending such recovery, and affirmed the judgment as reformed.

Wrongful DeathSurvival ActionNegligenceJury MisconductDamagesMental AnguishLoss of ConsortiumPecuniary LossAppellate ReviewSufficiency of Evidence
References
22
Case No. MISSING
Regular Panel Decision

Walsh v. 175 Water Street Partners

The executrix of a construction worker, who died in a job-related accident, initiated a death action seeking damages. Special Term granted summary judgment against the subcontractor and employer, and the case proceeded to an assessment of damages. A jury awarded $953,000, which the plaintiff deemed inadequate, prompting a motion to set aside the verdict. The assessment court conditionally granted this motion, requiring defendants to increase the award to $1,250,000. However, the appellate court concluded that the jury's initial damages evaluation was reasonable, reversing the assessment court's order and reinstating the original jury verdict.

Death ActionConstruction AccidentJob-Related InjurySummary JudgmentDamages AssessmentJury VerdictInadequate AwardAppellate ReviewIndemnificationGeneral Obligations Law
References
0
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