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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

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.