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Defense Digest

On The Pulse… New York Construction and Labor Law Practice Group. Knowing the Industry From the Inside Out

Defense Digest, Vol. 26, No. 4, January 2021

January 29, 2021

by Peter S. Read

Marshall Dennehey’s New York Construction and Labor Law Practice Group is comprised of a team of attorneys led by trial-tested partners, who each have decades of experience handling the most complex construction-site accident cases in the five boroughs of New York City and throughout the state. From issues involving contractual indemnification and insurance coverage, including owner-controlled and contractor-controlled wrap-up insurance programs, to the ever-evolving application of Labor Law 240, the infamous “Scaffold Law,” our attorneys remain at the forefront of this practice.

We represent clients across the entire spectrum of the construction industry, from architects and engineers to public and private building owners and developers, general contractors, construction managers, environmental and site safety consultants, and all manner of subcontractor trades. Our cases arise out of all aspects of the construction industry. They include claims involving excavation, shoring, demolition, crane, and heavy machinery operation in industrial, commercial and residential projects.

We bring to this practice more than just our legal expertise. Our attorneys have a variety of practical experience in and around the construction industry, such as employment in a family custom home construction company that has been in business on Long Island for the past 48 years; a former labor crew union member for a hotel construction company; employment with a developer building ski vacation homes; and even a licensed amateur radio operator with experience in the construction of antennae and other component parts.

So armed, our attorneys are fully versed in the full range of construction business practices, the roles of management and field personnel, and record-keeping protocols and procedures. Our attributes yield a cost-efficient defense strategy that we are ready to implement at a moment’s notice. Our proactive and aggressive approach enables us to anticipate issues and potential problems with ready and creative solutions—whenever and wherever our clients need us.

That means we are ready for immediate response to an accident scene. Since we are fully familiar with the complexity of construction sites, our experienced attorneys are ready and able to navigate sites to coordinate post-accident investigation in order to determine which trades and equipment are involved, identify and interview witnesses to the accident and individuals with knowledge relevant to the defense, and ensure the preservation of evidence.

A recent case illustrates how our background and experience translates into immediate results. The case involved a worker injured on the roof of a building under construction. As soon as we received the case assignment, we responded to the scene, determined exactly where and how the accident had occurred, and what type of work was involved. Knowing exactly what we needed in terms of records, we then immediately contacted our client and obtained the relevant construction documents that established that the client did not perform the type of work that produced the injury and that they did not perform any work at the location of the accident. We sent the documents to plaintiff’s counsel with a proposed stipulation of discontinuance and advised that we were otherwise ready to file a motion to dismiss calling for sanctions. The stipulation of discontinuance, with prejudice, of the claim against our client was signed within two weeks of our request.

It is this mindset and expertise that we take into every case assignment. On this point, we fully understand, and are ever mindful, that the interests of our clients and their insurers are most often best served by effectuating a swift and efficient transfer of their risk through either contractual indemnification or on the basis of additional insured status, and so each and every case is immediately analyzed for those opportunities.

Our record of excellent results by way of summary judgment victories or resolutions reached through strong negotiation at mediation is second to none. Nevertheless, when the facts or circumstances of a case require it, we do not hesitate to take a case to trial. By way of recent example, we have achieved the following:

  • We received a defense verdict after a three-week liability trial. We were facing liability under Labor Law 241(6) against our client. We obtained a verdict that assessed a significant percentage of fault on a claim for contribution against a third-party defendant that designed and manufactured a massive mechanical gantry running on a complex system of rails as part of a construction renovation project on the roof of a New York City building. We ended up saving our client over $2 million when the case resolved following the verdict.
  • We received summary judgment for a site safety consultant on the basis of its status as an independent contractor in a case involving the operation of a crane that resulted in the plaintiff sustaining catastrophic amputation injuries.
  • We received summary judgment for a third-party defendant employer in a case involving interrelated maritime and Labor Law construction claims at a marine construction site at the old Tappan Zee Bridge.
  • We won summary judgment, affirmed on appeal, for an owner where the court ruled that the plaintiff’s work activity did not qualify for protection under Labor Law 240, 241(6), or 200, under the Court of Appeals four-part analysis in Soto v. J Crew.
  • We won summary judgment for the owner and general contractor under Labor Law sections 240, 241(6), and 200, based on our argument that our client was not directing or controlling the plaintiff’s work when he was injured and that the Labor Law did not apply to the plaintiff’s fall from a truck in a parking lot adjacent to the construction site.

These examples represent but a mere snapshot of the cases handled and won by our New York Construction and Labor Law Practice Group. Our superior service and record of success is rooted not only in our legal expertise but also in our deep experience and knowledge of the construction industry itself from the inside out.

*Peter is a shareholder and co-chair of the firm’s New York Construction and Labor Law Practice Group. Peter works in our New York City office and can be reached at (212) 376-6445 or psread@mdwcg.com.

Firm Highlights

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.