Opinion
# 2017-053-017 Claim No. 128208
12-05-2017
LEXINGTON INSURANCE COMPANY, as subrogee of SENECA NATION OF INDIANS v. NEW YORK STATE THRUWAY AUTHORITY
FITZPATRICK & HUNT, PAGANO, AUBERT, LLP BY: Matthew D. Kennedy, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
After a unified trial, the Court finds that the claimant insurer failed to establish that the NYSTA was responsible for property damage to its insured's vehicle and the claim was dismissed. Claimant was the subrogee of the Seneca Nation of Indians, by which it sought to recover the fair market value of its insured's skid steer that collided with a NYSTA dump truck on Seneca Nation lands. As to the issue of liability, VTL 1103 (b) is determined to be applicable to the facts and the Court finds that the defendant was actually engaged in work on a highway at the time of the accident. As a result, ordinary negligence principles did not apply and claimant failed to establish that the NYSTA's conduct rose to the level of recklessness or reckless disregard.
Case information
| UID: | 2017-053-017 |
| Claimant(s): | LEXINGTON INSURANCE COMPANY, as subrogee of SENECA NATION OF INDIANS |
| Claimant short name: | LEXINGTON |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128208 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | FITZPATRICK & HUNT, PAGANO, AUBERT, LLP BY: Matthew D. Kennedy, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 5, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim arises from a motor vehicle accident that occurred behind the Seneca Nation of Indians (Seneca Nation) Department of Public Works (DPW) building on April 18, 2016. The accident involved a 2014 Case SR175 Loader a/k/a a "skid steer" insured by claimant Lexington Insurance Company (Lexington) and a 1999 International dump truck owned by the New York State Thruway Authority (NYSTA). The skid steer was owned by the Seneca Nation, who had insured it through a policy with Lexington with effective dates of July 1, 2015 through July 1, 2016. As a result of this accident, Lexington determined that the skid steer was a total loss and that it had a fair market value of $36,250. Lexington thereafter agreed to and did pay the Seneca Nation the sum of $26,250, representing the agreed upon fair market value minus the $10,000 policy deductible.
The trial of this claim was held in Buffalo on September 28, 2017. Three witnesses testified on behalf of claimant, including Ruben Rivera (Rivera), an employee of the Seneca Nation and the operator of the skid steer; Kenneth White, Jr. (White), an employee of the Seneca Nation; and Julie A. Schulz, AIC (Schulz), an insurance adjuster for Crawford & Company. Two witnesses testified on behalf of the defendant, including Robert E. House, Sr. (House), an employee of the NYSTA and the operator of the dump truck; and Edward J. Shields (Shields), a NYSTA investigator. Following the trial, the parties requested and were granted additional time to obtain the trial transcript and submit posttrial memoranda. FACTS
The first witness to testify was Schulz, the insurance adjuster for Crawford & Company assigned to the claim filed by the Seneca Nation for the property damage to the subject skid steer. The report prepared by Schulz, Exhibit 5, was received into evidence and indicates that the skid steer was a total loss due to chassis damage, that its fair market value was $36,250.00, and the Seneca Nation had a $10,000.00 deductible. As a result, Schulz testified that the Seneca Nation was paid the total sum of $26,250.00 on this claim. A copy of the check issued to the Seneca Nation on August 19, 2016 in the amount of $26,250.00, Exhibit 12, was also received into evidence. The defendant did not object to receipt into evidence of either exhibit and did not contest Schulz' evaluation of either the determination that the skid steer was a total loss, the method for computing its fair market value or the gross loss value of $36,250.00.
Rivera testified that he has been an employee of the Seneca Nation for 12 years, the past five years as a laborer with the Seneca Nation DPW. He worked in the DPW building which is located off Thomas Indian School Drive in Irving, New York. Immediately prior to the accident, Rivera was performing work with the subject skid steer, which he had operated approximately a dozen times prior to the day of the accident. He described that the rear of the DPW building has three bay doors for vehicles to pass through and indicated that between 40 and 45 vehicles go in and out of the building each day.
Rivera testified that immediately prior to the accident he partially opened the middle bay door so that he could exit the building with the skid steer. As Rivera proceeded out of the building on the skid steer, he testified that he was looking up to be certain that it would clear the bay door and also looking to his right to where a white transport bus was parked parallel with the building and obscuring his view of any approaching vehicles. Rivera testified that he proceeded out the bay door a distance of about 10 to 15 feet before clearing the white bus and then came to a complete stop, intending to then turn the skid steer. However, before he could turn the skid steer he observed the NYSTA dump truck operated by House coming quickly towards him to his right. Rivera testifed that when he first observed the dump truck it was passing the parked bus and was approximately 20 feet from him. He stated that when he first observed the dump truck that House was looking to his right and not forward in his direction of travel. Rivera estimated that the speed of the dump truck was between 20 and 25 mph. He testified that the dump truck impacted the front of the skid steer which caused it to spin and move a distance of approximately 15 feet before coming to a rest. Rivera had no recollection of the truck braking prior to impact or whether the truck left any skid marks.
During cross-examination, Rivera admitted that the white bus impaired and obstructed his vision as he came out the bay door. However, he denied that the cage on the skid steer impaired or obstructed his vision. He testified that he came out of the bay door slowly and came to a complete stop before the collision occurred with the dump truck. Rivera testified that there were two other Seneca Nation employees nearby who could have assisted him when he came out on the skid steer but stated that they were busy. He did agree that it "would have been wise" to have someone assist him as he came out.
The next witness to testify was White, who is also employed by the Seneca Nation. White has worked for the Seneca Nation DPW for the past 13 years and is a Laborer 2. On the day of the accident, he was working about 150 feet away from the accident scene and had his back to it at the time the collision occurred. White was operating a bulldozer and pushing the pile of millings that were being delivered by the NYSTA trucks. He estimated that the dump truck driven by House was the twentieth of about 180 truckloads of millings that were being delivered to this site. The bulldozer that White operated was identified by him in photo Exhibit D4, which he testified was taken approximately 30 minutes following the accident. White also testified that the millings were being dumped on a hill in the right rear portion of photo Exhibit D4. He testified that the accident occurred in the vicinity of where the marshal was standing in photo Exhibit D4. White testified that he did not observe the crash but heard it and looked up to find that the skid steer had been spun around and was located where the marshal's vehicle is located in photo Exhibit D4. He testified that the location of the defendant's dump truck was on the right side of the road depicted in photo Exhibit D4. White testified that the dump truck operated by House was the first truck coming in that afternoon with a load. He did not observe House hauling millings to the Seneca Nation site prior to this date.
White marked a copy of photo Exhibit D4, which was received into evidence as Exhibit D4A. On this photo he sketched the outline of the defendant's truck as the large rectangle and the location of the skid steer following the crash with the small rectangle to its left.
On cross-examination, White denied that the parking lot at the rear of the Seneca Nation DPW building was busy. He testified that 10 to 12 NYSTA trucks had delivered millings that morning and that the delivery by House was the first truck delivery that afternoon. White testified that the millings were delivered about 75 yards further down the service road from the accident location. He testified that the hill of millings is depicted in photo Exhibit D4 beyond the red dump truck.
The next witness to testify was House, the operator of the subject dump truck, who began as a seasonal employee for the NYSTA in May 1994 and became a heavy construction equipment operator in 2011 or 2012. He retired from the NYSTA on April 30, 2016, 90 days after submitting his retirement papers. On the day of the accident, House testified that he was operating a seven ton dump truck. He testified that his normal start time was 5:30 a.m. House testified that he was told by his supervisor that he was to go to the Silver Creek maintenance facility to haul millings off the Thruway and take them to the Seneca Nation. He testified that he made two trips between the Silver Creek facility and the Seneca Nation prior to the accident and recalled that the accident happened at about 2:15 p.m.
House testified that he turned off the road onto the road running alongside the Seneca Nation DPW building. As he turned to his left to go around the rear of the building the skid steer suddenly appeared in front of the parked white bus and "the two of us collided." House testified that photo Exhibit D2 shows where the skid steer came to rest after the accident. He testified that the lower left of the wing tower on the front of the dump truck struck the skid steer. House also testified that photo Exhibit D shows the dump truck left front wheel that was damaged when it struck the forks on the skid steer. House testified that he did not see the skid steer prior to the collision. Following the collision, he shifted his vehicle into neutral, put on the parking brake and asked Rivera if he was all right. House testified that Rivera told him that he didn't see him as he was looking up to see if he had clearance on the bay door. He testified that the position of the bay door at the time of the accident was the same as depicted in photo Exhibit D2.
On cross-examination, House stated that he was driving between 5 and 10 mph when he turned left on the service road to go behind the DPW building in order to reach the hill of millings. He testified that he was going about 15 mph when the accident occurred. House insisted that Rivera told him that he didn't see him prior to the accident and that neither of them saw each other prior to the accident. He estimated that the white bus was parked approximately four feet from the exterior wall of the DPW building and that the width of the bus was a total of 12 feet off the building. He also estimated that the skid steer needed 16 to 18 feet to clear the bay doors.
The last witness to testify was Shields, who is a NYSTA investigator. Shields testified that he has been employed by the NYSTA for 14 years and was promoted to his current position in 2014. He testified that his job responsibilities are to investigate accidents involving NYSTA employees, which includes interviews with the respective drivers, photographs and then compiling an accident report. Shields testified that he received a telephone call to go to the accident location and arrived approximately 20 minutes after the call. Referring to photo Exhibit D2, he stated that the bay door and skid steer were in the positions shown in this photograph when he arrived at the accident scene. Shields testified that he went into the bay with Rivera and House to discuss as a group what had occurred. He testified that he was told that neither operator had seen each other until they were involved in the accident adding that "there was no blame game between them." Shields testified that while standing together, both Rivera and House told him that they did not see each other until after the accident. Rivera also stated to Shields that the bay door was part of the reason why they were not able to see each other.
Following the completion of Shields testimony, Rivera was brought back as a rebuttal witness. Rivera testified on rebuttal that the bay door was not a factor in causing the accident. He also testified that he was not looking up at the bay door immediately prior to the accident but straight ahead. He recalled Shields being there after the accident and that they stood in a group outside the DPW building, not inside as Shields testified. Rivera testified further that Shields was mixed up as to what he said about the bay door and looking up at it. The only other conversation that he recalled between them was House stating that he would be retiring the next Friday. Rivera specifically denied stating to Shields and House that he was a cause of the accident. On cross-examination, Rivera testified that the accident occurred two seconds after he cleared the bay door. LAW
Preliminarily, it must be determined whether New York law applies to the claim as it occurred on Seneca Nation lands. The property damage in this claim was to a skid steer owned by the Seneca Nation and insured by the claimant subrogee. Although the parties to this action, namely, Lexington and the NYSTA are not Native Americans, if this Court determines that Lexington is entitled to a judgment in its favor, the Seneca Nation may receive all or a portion of its insurance policy deductible. It has been held that whether the plaintiff is Native American is not dispositive of the issue of whether New York or tribal law is to apply (John v Klewin Bldg. Co., Inc., 94 AD3d 1502 [4th Dept 2012]). The courts have ruled that state laws will apply on Native American lands so long as their application will not interfere with reservation self-government or impair a right granted or reserved by federal law (Karcz v Klewin Bldg. Co., Inc., 85 AD3d 1649 [4th Dept 2011], citing to Mescalero Apache Tribe v Jones, 411 US 145, 148, 93 S.Ct. 1267, 36 L.Ed.2d 114; see White Mountain. Apache Tribe v Bracker, 448 US 136, 142-143, 100 S.Ct. 2578, 65 L.Ed.2d 665). As the claim asserts a cause of action in negligence and seeks a monetary award for damage to the Seneca Nation's skid steer that was insured by the claimant, it is the Court's finding that a determination in favor of claimant as a contractual subrogee of the Seneca Nation will not impact or violate the Seneca Nation's right to self-government or impair a right granted or reserved to federal law. As a result, it is the determination of this Court that New York law will apply to this claim.
The next issue is whether Vehicle and Traffic Law § 1103 (b) [VTL 1103 (b)] is applicable to the facts of this claim. VTL 1103 (b) provides that except for the provisions of sections 1192 through 1196, the Vehicle and Traffic Law statutes shall not apply to vehicles owned or operated by the state "while actually engaged in work on a highway." The Court of Appeals has held that when VTL 1103 (b) is applicable, ordinary negligence principles do not apply and instead the standard is recklessness or reckless disregard, which requires that claimant provide proof of "more than a showing of a lack of 'due care under the circumstances' " (Saarinen v Kerr, 84 NY2d 494, 501 [1994]). The Court of Appeals has also held that the legislative intent of VTL 1103 (b) is to create a broad exemption from the rules of the road for "all vehicles engaged in highway construction, maintenance or repair, regardless of their classification" (Riley v County of Broome, 95 NY2d 455, 464 [2000]). It is not disputed that the NYSTA vehicle involved in the collision was in the process of delivering a load of millings. As such, it is the finding of this Court that the defendant's vehicle was "actually engaged in work" within the meaning of this statute (Gawron v Town of Cheektowaga, 117 AD3d 1410, 1413 [4th Dept 2014]).
The next issue is whether the area where the collision occurred was a "highway" within the meaning of VTL 1103 (b). A "highway" is defined by VTL§ 118 as "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel" (Gawron, supra at 1411). It is uncontroverted that the collision occurred on property owned by the Seneca Nation and that pursuant to an agreement with the NYSTA, its vehicles were delivering millings from the NYS Thruway to an area selected by the Seneca Nation that was located behind and adjacent to its DPW building. The testimony and photographic evidence at trial established that in order to access this location, NYSTA vehicles drove off a public highway that intersected a service road at the entrance to the Seneca Nation DPW building. They then followed the service road behind the DPW building and were to continue until they reached an area beyond the DPW building where a hill had formed from dumping the millings. Both Rivera and House testified that as the dump truck was passing by the parked white bus at the rear of the DPW building, the collision occurred with the skid steer that had just exited the middle of three bay doors. The photographic evidence admitted at trial shows that the collision occurred on the service road running along the rear of the DPW building and adjacent to parking areas on either side.
Photo exhibits D4, D4A and 16. --------
The Appellate Division, Fourth Department in Gawron extended the application of VTL 1103 (b) to a service road that was "publicly maintained and open to the use of the public for the purpose of vehicular travel" (Id at 1411, citing to Groninger v Village of Mamaroneck, 17 NY3d 125 [2011]). In Groninger, the Court of Appeals held that a parking lot in a village was a highway for purposes of the prior written notice requirement of Village Law § 6-628, stating that "[f]or nearly 30 years, the courts of this state have consistently found that a publicly-owned parking lot falls within the definition of a 'highway' and therefore prior notice of defect is required" (Id at 128). As the testimony and photographic evidence at trial established that the NYSTA vehicle was traveling on a service road behind the Seneca Nation DPW building, it is the finding of this Court that the accident location constitutes a highway within the meaning of VTL 1103 (b).
As the Court finds that VTL 1103 (b) applies to the facts of this claim, claimant is required to establish that the defendant's truck driver operated the vehicle with recklessness or with reckless disregard for the safety of others. This standard requires that claimant demonstrate that House's operation of the dump truck was "an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (Saarinen, supra at 501) [internal quotation marks omitted].
House testified that as he turned to his left and went around the rear of the DPW building and was about to pass the parked white bus, the skid steer appeared in front of him and "the two of us collided." He testified that he was traveling at a speed of approximately 15 mph. Rivera testified that when he pulled in front of the white bus and first observed the defendant's dump truck, it was passing the parked white bus and was approximately 20 feet from him. Rivera testified that he then observed House looking to his right, not forward, and estimated the speed of the dump truck to be between 20 and 25 mph. However, even if Rivera's testimony is accepted as true, the Court of Appeals has previously ruled that a "momentary judgment lapse" such as this does not alone rise to the level of recklessness required (Szczerbiak v Pilat, 90 NY2d 553 [1997]; Kabir v County of Monroe, 68 AD3d 1628 [4th Dept 2009]; and Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705 [2d Dept 2008]. In addition, even if it is accepted that House's speed was 20 to 25 mph as opposed to 15 mph, that too is also insufficient to establish recklessness. The Court finds that Rivera's testimony was insufficient as a matter of law to establish that House's operation of the dump truck rises to the level of reckless disregard for the safety of others within the meaning of VTL 1103 (b). Furthermore, the Court finds that the sudden appearance of the skid steer in front of the bus was a contributing factor to the collision. As a result, the Court finds that insufficient evidence was presented to conclude that House "committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (Gawron, supra at 1413).
Therefore, based on the foregoing, the Court finds that claimant has failed to prove the claim by a preponderance of the credible evidence. Accordingly, the claim is hereby dismissed in its entirety. Any motions or objections upon which the Court has previously reserved or which remain undecided are hereby dismissed.
The Clerk of the Court of Claims is directed to enter judgment accordingly.
December 5, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims