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Workers' Compensation

What's Hot in Workers' Comp

Appellate Division affirmed grant of summary judgment in favor of defendant.

Busby v. Seabrook Bros. & Sons, No. A-1925-21 (August 5, 2024)

October 1, 2024

by Kiara K. Hartwell

The plaintiff began working for Seabrook in January 2017, and in April 2017, he injured his right hand while cleaning a commercial mixing machine (Line 9). Vegetables were fed into Line 9 through hoppers and then into a trough, where a rotating auger mixed and moved the product. The employer bought the top hopper component of Line 9 from a manufacturing company in 2011, but they did not buy the corresponding conveyor system. As Seabrook’s guard was not designed for the conveyor system, it had to be removed to clean the auger. 

While there was a dispute as to whether the guard was always on the machine, Seabrook knew it was dangerous if the guard was not on the machine while it was activated during the cleaning process. The plaintiff was never trained on the cleaning process. In 2012, OSHA performed an inspection, and as a result, cited Seabrook. There was a dispute as to whether Seabrook abated the violations prior to this incident.

The plaintiff was not trained in the cleaning and safety procedures, and there was no guard on the auger when he was cleaning. He began cleaning for about 30 seconds when it suddenly turned on, pulling the hose and his hand into the auger. A former employee testified that he witnessed other close calls, but never reported them to a supervisor. The plaintiff’s injury was the first injury relating to the auger on Line 9.

In April 2019, the plaintiff filed a personal injury action against Seabrook, alleging substantial certainty of harm due to Seabrook’s removal of the guard and failure to train the plaintiff. Seabrook moved for summary judgment, and after oral arguments, the judge rendered an oral opinion granting the motion. The judge found Seabrook did not engage in any deliberate acts that led to the plaintiff’s injury, its failure to train and have lockout procedures in place were more akin to negligence, and there was also a lack of any prior injuries on Line 9. 

The plaintiff appealed, arguing the court did not properly consider his expert’s report and the outside evidence regarding the OSHA violations. The plaintiff presented a variety of facts and arguments he alleged supported an inference of a substantially certain injury. After an extensive review of the case law, the Appellate Division noted why the cases the plaintiff cited were distinguishable: mainly due to notice of prior injuries, history of close calls, etc. 

The Appellate Division also pointed out there was no intentional or fraudulent deception by Seabrook and that the plaintiff was injured when Line 9 was unexpectedly activated. The Appellate Division focused on language from Bove v. AkPharma Inc., 460 N.J. upper. 123 (App. Div. 2019), in noting that a violation of safety regulations or a failure to follow safety practices were not intentional wrongs unless accompanied by something more. 

As for the plaintiff’s argument that summary judgment is inappropriate whenever there is an unopposed expert report of a substantially certain injury, the Appellate Division found no error in the judge’s lack of referencing the expert report. The court found the accident was due to negligence, rather than an intentional wrong, and the expert report did not require the court to deny summary judgment. 

Finally, the Appellate Division briefly addressed the outside evidence regarding the OSHA violations, finding the court applied the “opening the door” doctrine in considering this evidence. The court found this evidence to be relevant and it was proper to consider this evidence in the OSHA violations argument. 

The Appellate Division affirmed the granting of summary judgment in favor of Seabrook. 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 10, October 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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