Monday, July 3, 2017

Employers Insurance Co. of Wausau v. Harleysville Preferred Insurance Co.: Insurer doesn't have to defend an electrical contractor and two transportation authorities in litigation over the death of Hellman Electric Corp. worker Nicholas Cavataio crushed by a 2,765-pound battery, contending that a policy exclusion for injuries tied to use of mechanical devices bars coverage.

Insurer Needn't Cover Worker's Death, 2nd Circ. Told

By Jeff Sistrunk Law360, Los Angeles (March 20, 2017, 5:59 PM EDT) -- Harleysville Preferred Insurance Co. on Friday asked the Second Circuit to affirm a lower court's ruling that it doesn't have to defend an electrical contractor and two transportation authorities in litigation over the death of a worker crushed by a battery, contending that a policy exclusion for injuries tied to use of mechanical devices bars coverage. 

In an appellate brief, Harleysville said U.S. District Judge Denise Cote made the right call in holding that it has no duty to defend or indemnify Hellman Electric Corp., the Metropolitan Transit Authority or the Triborough Bridge and Tunnel Authority in the underlying action because the worker was killed when a giant battery fell off a hydraulic device called a pallet jack, thereby implicating the mechanical device exclusion in the insurer's policy.

"Because the undisputed facts unequivocally establish that the accident resulted from the movement of property (the battery) by a mechanical device (the pallet or pump jack) which was not connected to any auto, the mechanical device exclusion applies, and there is no coverage provided by the Harleysville policy," the insurer's attorneys wrote.

The accident in question occurred in August 2014. Hellman and TBTA, an affiliate of MTA, had entered into a contract for Hellman to install an electronic security system near the Throgs Neck Bridge in the Bronx, according to court documents.

A Hellman worker, Nicholas Cavataio, was helping unload a box truck leased by Monarch Electric Co. when a 2,765-pound battery fell off the truck's lift gate and crushed him, court papers indicate.

At the time of the accident, Hellman held an auto liability policy with Harleysville and a professional general liability policy with Employers Insurance Co. of Wausau. Monarch, meanwhile, held an auto policy with Travelers Indemnity Co.

In November 2014, Cavataio's widow, Rosanne, filed a wrongful death action in New York state court against a slew of parties, including Monarch, MTA and TBTA. Two months later, the transportation authorities lodged a third-party complaint against Hellman, alleging that the electrical contractor was required to indemnify them against any liability connected to the project.

Wausau agreed to defend Hellman and the authorities and then filed suit against Harleysville and Travelers in New York federal court in June 2015, seeking to hold those insurers primarily responsible for defense and indemnification in the Cavataio litigation.

Judge Cote ruled in favor of Harleysville and Travelers in February 2016, holding that mechanical device exclusions in the two insurers' policies, which preclude coverage for injuries resulting from the "movement of property by a mechanical device," applied to the claims in the Cavataio action. Among other things, the district judge said evidence showed that the battery was being moved by a hydraulically powered pallet jack when it fell and crushed Nicholas Cavataio.

Employers appealed to the Second Circuit. In an opening appellate brief filed in December, Employers contended that Judge Cote erred in referring to outside, or extrinsic, evidence in deciding to apply the mechanical device exclusion, pointing out that Rosanne Cavataio's complaint provided scant details about the specifics of the accident and did not even mention a pallet jack. Because the cause of the accident is in dispute, the insurer said, Harleysville and Travelers should have been required to cover Hellman, MTA and TBTA.

Harleysville countered in Friday's brief that Judge Cote properly applied the mechanical device exclusion because there is no dispute that the pallet jack was being used to move the battery at the time of the incident.

"Every available document and source of evidence in the wrongful death case establishes that the 2,700 pound battery was being moved by a pallet jack in an attempt to unload it off Monarch’s truck," Harleysville argued.

In addition, Harleysville said that the very outside evidence mentioned in Employers' brief implicated its auto liability policy. The Cavataio complaint itself didn't mention the use of a vehicle at the time of the accident, according to the auto insurer's brief.

"The same documents and items of evidence that implicate Harleysville’s policy also implicate its unambiguous exclusion for use of an unattached mechanical device to move the load," Harleysville said.

Employers is represented by Marshall T. Potashner and Janet Jakyung Lee of Jaffe and Asher LLP.

Harleysville is represented by Lance Jon Kalik and Brooks H. Leonard of Riker Danzig Scherer Hyland & Perretti LLP.

Travelers is represented by Alan C. Eagle and Joanne Mary Engeldrum of Rivkin Radler LLP.

The case is Employers Insurance Co. of Wausau v. Harleysville Preferred Insurance Co., case number 16-906, in the U.S. Court of Appeals for the Second Circuit.


Contractor crushed to death by oversized crate

By Natasha Velez and Leonica Valentine

August 5, 2014 | 10:52am

A contractor was fatally crushed by an oversized crate Tuesday morning near the Throgs Neck Bridge, cops said.

The man, Electrician Nick Cavataio, 62, was working outside the MTA Bridges and Tunnels building in The Bronx at about 7:45 a.m. when he was hit by the box, which had a 2,700-pound battery-operated ­device inside, officials said.

Cavataio, of East Stroudsburg, Pa., was pronounced dead at the scene.

Cavataio worked for a private company, Hellman Electric, which is upgrading the building’s electrical supply.

“He was unloading a large piece of electrical equipment for a project to be installed at headquarters not the bridge itself,” said Adam Lisberg, spokesman for the MTA.

The facility is located on the Queens bound side of the bridge near the Pennyfield Avenue exit, cops said.

“It was a type of truck that had a lift. It’s too early to tell if the equipment malfunctioned,” the spokesman added.

There were no other reported injuries.