The Ask Tim blog has been on an extended hiatus for some time now. Hopefully, this is the first of many regular posts. If you got out of the habit of checking for new content, I hope you'll start coming back.
New York courts have weighed in on the difference between an independent contractor and an employee and acceptable reasons for late notice of a claim in the first few weeks of October.
- The City of Rome hired Michael Brown “to provide guidance to certain community organizations and to develop and implement various urban renewal initiatives.” When he filed a workers’ compensation claim after suffering an injury at work, the City sought to have his claim denied on the grounds that he was an independent contractor, not an employee. The New York Workers’ Compensation Board ruled in Brown’s favor in late 2007, and last week the state Supreme Court’s Appellate Division, Third Department agreed. Though his contract with the City labeled him as an independent contractor, the court noted that City employees supervised him and required him to work specific hours and attend department meetings; the City had authority to fire him; it provided him with equipment and supplies; and it required him to obtain its prior approval for his expenses. “In our view,” the court said, “these facts constitute substantial evidence supporting the Board’s determination, notwithstanding the presence of evidence that could support a contrary result.”
- The second case involved another man named Brown who had a 2002 car accident with Albertano Batista, whose auto insurance was provided by American Transit Insurance Co. (ATIC.) ATIC paid Brown’s property damage claim in early 2003. Days before the three-year statute of limitations for filing an injury claim expired, Brown filed a claim against Batista and sent copies of the suit to ATIC at the address shown on the company’s 2003 correspondence. However, ATIC moved to a new location in late 2003; by the time Brown’s attorney mailed the suit documents, the post office was no longer forwarding mail to the new address. When Batista failed to respond to the suit, a court awarded $81,000 to Brown, who then demanded payment from ATIC. The company promptly denied coverage because the demand for payment was its first notice of the suit, some 21 months after Brown took the action.
Brown sued and lost in trial court, but the Appellate Division’s First Department overturned the verdict, saying that Brown, “demonstrated a valid excuse for forwarding the summons and complaint to ATIC’s former address in that he was never notified of its change of address.” Two members of the five-judge panel disagreed. Associate Justice James M. Catterson wrote, “In my opinion, the majority has placed the burden on the wrong party. There is no legal obligation on ATIC to establish what sufficient efforts it made, if any, to notify a potential plaintiff of a change of address. Certainly, there is no legal authority whatsoever for the majority's demand that ATIC should have sent a specific notification to the counsel of a plaintiff whose property claim had been settled almost a year prior to ATIC's move to a new location…In the absence of any legal authority for such a position, it appears the majority is willing to accept an attorney's lack of diligence in failing to spend three-tenths of a second to verify an address on the Internet as a valid excuse for the failure to satisfy an insurer's notice requirement.”
Thanks once again to Roy Mura for posting about the American Transit case on his Coverage Counsel blog.
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