New York State Court of Claims

New York State Court of Claims

TOWER INSURANCE v. THE STATE OF NEW YORK, #2008-044-550, Claim No. 112760, Motion Nos. M-74146, CM-74182, CM-74305


Synopsis


Court granted claimants’ motion to compel disclosure of accident report prepared by DOT in aftermath of bridge collapse in which 2 died; defendant did not meet its burden of showing that the report was prepared solely for purposes of litigation, rather than at least in part in the ordinary course of its business. Court rejected DOT's argument that it had no obligation to prepare any accident report for a catastrophic infrastructure failure. Court ordered in camera review of report to redact any privileged material.

Case Information

UID:
2008-044-550
Claimant(s):
TOWER INSURANCE COMPANY OF NEW YORK, a/s/o M&K LLC
Claimant short name:
TOWER INSURANCE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112760
Motion number(s):
M-74146
Cross-motion number(s):
CM-74182, CM-74305
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
D’AMBROSIO & D’AMBROSIO, P.C.BY: Frank G. D’Esposito, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 23, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2008-044-551, 2008-044-552, 2008-044-553, 2008-044-554


Decision
These claims[1] have been brought to recover for the wrongful death of two people and for

property loss, all arising out of flooding and the subsequent collapse of Interstate Highway 88 (I-88) over a culvert[2] at Carr’s Creek near Unadilla, New York on June 28, 2006 (the Collapse).

The parties have engaged in substantial discovery, as well as several conferences with the Court regarding the issue to be determined in these motions. The State of New York (defendant) has acknowledged that it has created a report entitled “Interstate 88 Over Carrs Creek Pipe Failure / Forensic Failure Analysis: Structural, Geotechnical and Hydrological” (the Report), but has refused to disclose it, contending that it is privileged and not subject to disclosure.

By Order of this Court dated October 3, 2007, defendant was directed to prepare a privilege log concerning the Report. Assistant Attorney General (AAG) Joseph F. Romani was also directed to maintain a sealed copy of the Report in his office. The privilege log submitted to the Court indicates that the Report is approximately 20 pages long, includes 14 photographs, and contains section headings entitled:

Existing Conditions and Event Information

Chronology of the Event

Removal of the Pipe and Forensic Analysis

Inspection and Prediction of Risk

Planned Repair and Project Progression.


Claimants Daniel O’Connell and York Insurance Company of Maine now move (Motion No. M-74146), and claimant Arline Swingle cross-moves (Cross Motion No. CM-74182), to compel disclosure of the following by defendant:

1) copies of the Report, as well as any other investigation report prepared by the Department of Transportation (DOT) or any other agency of defendant relating to the Collapse;[3]

2) copies of any and all factual statements, photographs, post-accident studies, and other factual information relied upon (other than the Report itself) by defendant in reaching any conclusions relating to the cause of the Collapse;

3) a list of individuals, identified by name, Department, and Title, who participated in providing information for the Report;

4) an inventory list specifying the nature and providing a description of any and all items of physical evidence removed from the site of the Collapse by defendant; and finally,

5) allowing access to Claimants’ experts in order to inspect, test, and photograph that physical evidence identified in the inventory list mentioned in item 4 above.

In response to claimants’ motion and cross motion, defendant cross-moves (Cross Motion No. CM-74305) for a protective order prohibiting disclosure of the Report, pursuant to CPLR 3103. Defendant does, however, agree to disclose “photographs, other factual information, inventory of physical evidence removed from the site, and [will provide] an opportunity to inspect, test, etc., such items.”[4] Accordingly, items 2, 4 and 5 above do not appear to be in dispute, and will not be addressed in this Decision and Order.

CPLR 3101 (g) provides in pertinent part: “there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any . . . public or private entity.” However, CPLR 3101 (d) (2) provides a conditional exemption from disclosure of anything prepared in anticipation of litigation. Courts have resolved this seeming contradiction, stating there is a “sharp distinction between accident reports which result from the regular internal operations of the business, even where the sole motive behind the business operation is litigation, in which case the reports are discoverable under CPLR 3101 (g), and those which are produced solely in connection with the report of an accident to a liability insurance carrier or to an attorney with respect to plaintiff’s claim, in which case they are not” (James v Metro N. Commuter R.R., 166 AD2d 266, 267-268 [1990]; Miranda v Blair Tool & Mach. Corp., 114 AD2d 941, 942 [1985]; Pataki v Kiseda, 80 AD2d 100 [1981], lv dismissed 54 NY2d 831 [1981]).

In this instance, defendant contends that the Report was prepared solely for the purposes of litigation, and is additionally a confidential attorney-client communication.[5] Notably, defendant expressly argues that the Report was not prepared in the regular course of business, and is thus not discoverable under CPLR 3101 (g).[6] In support of these contentions, defendant has submitted two affidavits, one by Robert Burnett, Director of the Geotechnical Engineering Bureau for DOT, and one by Janice McLachlan, Director of the Division of Legal Affairs for DOT.

In Burnett’s Affidavit, he indicates that he is the author of the Report. He first visited the site on June 29, 2006, the day after the Collapse, and “thereafter on various dates during the month of July 2006, to observe and photograph the removal of the collapsed culvert pipe.”[7] It is unclear who, if anyone, directed Burnett to investigate at the site. Burnett states that he also visited the site on July 19, 2006 to designate samples of the pipe to be saved in anticipation of litigation.[8] He further indicates that “[i]t was not until August 16, 2006, that Janice McLachlan . . . contacted me and directed me to prepare a confidential Report for the sole purpose of advising the attorneys for [DOT] and defending anticipated litigation.”[9] Burnett states that he was specifically directed by Attorney McLachlan “not to share the contents of the [R]eport with any other members of the Department, including [his] supervisor and the Department’s Chief Engineer, and also not to share the Report with the staff of the Federal Highway Administration.”1[0] Burnett also states that the Report “contain[s] [his] personal evaluations, deliberations, opinions and conclusions,”1[1] and further contends that the Report is not final, as he wants to share portions with those people in DOT who contributed information to him to make sure that he accurately portrayed that information.1[2] However, because he has not been allowed to share portions of the Report with those people due to McLachlan’s instructions, he claims he has not been able to finalize the Report at this time, approximately two years after the date of the Collapse.

McLachlan’s Affidavit confirms that she first contacted Burnett on August 16, 2006, and also states that at that time she asked three other DOT engineering managers,1[3] as well as Burnett, to prepare “an engineering investigation and analysis of the culvert failure.”1[4] She made the request “specifically in anticipation of litigation,”1[5] and advised that the Report “could not be shared or used for any other purpose.”1[6]

Upon inquiry by the Court, defendant has advised - astoundingly - that it has no obligation, either pursuant to statute or regulation, to prepare an accident report1[7] regarding the Collapse in the regular course of its business. In defense of this position, counsel for defendant first acknowledges the existence of Transportation Law § 138 (7), which provides in pertinent part that DOT’s Commissioner is empowered to “investigate the cause of all accidents resulting in loss of life or injury to persons or property, which in the commissioner’s judgment shall require investigation.” However, defendant contends that this section is inapplicable, because “the focus of th[at] statute and the accompanying regulations are not the safety of the road, structure or the cause of a failure, but rather with the condition and operation of the vehicle itself.”1[8] This statute is contained in Article 6 of the Transportation Law, entitled “Matters Relating to All Motor Carriers.”

At motion term, in response to defendant’s contention that it has no obligation to conduct an investigation in these circumstances, the Court noted the existence of DOT’s Bridge Inspection Program. That program was enacted pursuant to Highway Law § 231. That section provides in part:
[t]he Commissioner is authorized and directed to establish, implement and exercise oversight of and over a program of comprehensive bridge management and inspection. Such program shall facilitate the systematic organization and coordination of bridge inspection, maintenance, and repair information and practices to ensure and provide for sound comprehensive bridge management, thorough bridge inspections and proper, cost effective preventive maintenance for all bridges, publicly-owned, operated or maintained and shall further establish an inventory of all privately owned bridges. The program shall also include the establishment and maintenance of a bridge information data base and bridge information center”


(Highway Law § 231 [1]). Regulations establishing and specifying the inspection and reporting requirements for this program are set forth in 17 NYCRR Part 165.

The Court specifically inquired of defendant whether the provisions of 17 NYCRR 165.4 were applicable to this situation. That regulation provides, in pertinent part, that “[a] special inspection . . . shall be performed whenever the structural integrity of a bridge is or has been threatened by a . . . flood.” Further, the provisions of 17 NYCRR 165.7 mandate that the reports prepared regarding special inspections of bridges must be filed in the Regional Director’s Office within 60 days of the inspection.

In response to the Court’s inquiry, defendant contended that the provisions of 17 NYCRR 165.4 (d) do not apply to this situation, because the bridge had already failed, and inspections of the type required under these regulations require the existence of an actual structure.1[9] Defendant argued that these special inspections are meant to determine the integrity of an existing structure and its ability to carry traffic.2[0]

The only affidavit provided by defendant in support of this argument is that of Sreenivas Alampalli, the Director of the Bridge Evaluation Services Bureau of DOT. In that affidavit, Alampalli states that DOT did not conduct a special inspection pursuant to 165.4 (d), because he “do[es] not believe that [the section] is applicable if the structure has already failed,” and further states that “[s]ince no special inspection was conducted . . . no inspection report was filed, or required to be filed” 2[1] pursuant to the Bridge Inspection Program regulations.

Highway Law § 231 (4) does provide for the creation of a database in which records of collapses are kept. Alampalli provides a one-line database record, presumably from the database created pursuant to this section, which indicates that the bridge totally collapsed on June 28, 2006 due to a hydraulic flood.2[2]

While Alampalli very carefully limited his statement - that no bridge inspection was required in cases of total failure - solely to the regulations comprising the Bridge Inspection Program, counsel for defendant made the much more sweeping and all-encompassing statement that “[t]here are no specific regulations requiring inspection of an already failed / destroyed bridge or missing culvert . . . Highway Law § 231 (4) does not require DOT to make reports of collapses or failures such as the confidential report which is the subject of [these motions].”2[3][N]o regulation or statute-mandated report was required”2[4] (emphasis supplied).

As accurately noted by counsel for claimant Swingle, “[i]t would seem absurd for the Legislature to have intended as part of its envisioned ‘sound comprehensive management’ that when less than total collapse occurred [DOT] would be required to meet stringent inspection and reporting requirements, but in the event of a more catastrophic total collapse with resulting fatalities and neighboring home destruction, [DOT] only need to make the one line data base entry provided by the State.”2[5]

The Court’s inquiry to defendant, in writing, was “[w]hether the State’s Department of Transportation is under a legal obligation, whether it be by means of (either Federal or State) statute, regulation or policy, to prepare any accident report in situations such as the incident which is the subject of this litigation, and if so, provide a copy of said requirement(s).”2[6] Not only has defendant explicitly stated that there is no statutory or regulatory obligation to create such a report, it further states that “[n]one of [DOT’s] policies call for a report where there is a failure of a highway or structure unless it occurs on a NYS DOT contract or involves NYS DOT employees or equipment, and no such reports were prepared for this case.”2[7]

However, in a separate motion in this claim (Motion No. M-74518), a former Regional Director of DOT, Richard Church, P.E., states: “[DOT] routinely investigates accidents as part of its duties to the public. Reports are created and typically made public as part of the normal course of business for the DOT. A requirement for such reporting may have even been in the Manual for Administrative Procedures (‘MAP’).”2[8] Despite the Court’s inquiry at oral argument, defendant has not addressed whether the MAP contains such a requirement.

In contrast to defendant’s contention that it has no obligation to prepare an accident report in the instance of a total collapse of a bridge-type structure, counsel for claimants have cited numerous instances where DOT has in fact conducted investigations of bridge failures and released reports and investigative results – whether required by statute or regulation, or merely as a matter of DOT policy – some of which are even contained on DOT’s website.2[9] One of these reports is dated as recently as July 27, 2005, approximately 11 months prior to the Collapse at issue in these claims.3[0]

Defendant has proffered no explanation regarding its method of determining when a report detailing the results of an accident investigation would be prepared - or even when such an investigation would be conducted - as opposed to when it would not. Instead, defendant feebly attempts to excuse its incredible claim that it has no obligation to prepare such a report by stating that, in this instance, its “main concern . . . was focused on repairing the damaged structure and reopening the highway.”3[1]

In the Court’s view, defendant makes its unbelieveable assertion that it has no obligation to prepare an accident report in instances such as this solely to avoid any inference that the Report was created, at least in part, in the ordinary course of DOT’s business, and is therefore discoverable. First, it is a matter of simple common sense - at least as the Court understands it - that DOT would want to determine the cause of an instance of a total catastrophic infrastructure failure - the collapse of a portion of a state highway, leading to multiple deaths - in order to prevent such a situation from reoccurring. To even argue to the contrary is ludicrous and insupportable.3[2]

Next, it is notable that Burnett was present on the scene of the Collapse the day after it occurred, and repeatedly thereafter for nearly two months before McLachlan asked him to prepare the Report. Defendant advises that Burnett was present because “DOT certainly had an interest in the cause of [the] event and [he] went there to observe the removal of the collapsed structure.”3[3] Defendant’s argument on this point continues: “[b]ecause the cause of the collapse was so singular and unusual - and indeed, unpreventable - there was no reason to change any of the ways in which DOT does business and so no regulation or statute-mandated report was required.”3[4] Even if that contention was true, rather than being simply a conclusory and as-yet unproven, totally self-serving statement, it seems - again - readily apparent that Burnett would not spend so many days on the scene of such a devastating incident without then - ordinarily - preparing a report detailing the results of his investigation, and outlining the basis for the conclusion that the Collapse was unpreventable, so that DOT officials, and the traveling public, could review that report and determine that no changes needed to be made to design standards and processes, or to inspection procedures. Indeed, if defendant’s argument that the incident was unpreventable was in fact accurate, defendant would presumably have no qualms about disclosing the Report, as that could only help its defense of this claim.

In conclusion, the Court finds that defendant has not met its burden of demonstrating that the Report was prepared solely for purposes of litigation, rather than also in the ordinary course of business, as that burden cannot be satisfied by wholly conclusory allegations (see Claverack Coop. Ins. Co. v Nielsen, 296 AD2d 789 [2002]). “[S]elf-serving statements that the party seeking to avoid disclosure is not in the business of filing [such] reports and that all reports prepared were in anticipation of litigation are insufficient to establish that the material qualifies for the privilege” (id. at 790; see also Friend v SDTC-Center for Discovery, Inc., 13 AD3d 827 [2004]). DOT must unquestionably be in the business of filing accident reports in the case of catastrophic infrastructure failure.3[5] Any allegation to the contrary is indeed self-serving, and wholly insufficient in this instance to prevent disclosure of the Report (see Merrick v Niagara Mohawk Power Corp., 144 AD2d 878 [1988]; Viruet v City of New York, 97 AD2d 435 [1983]), and further casts serious doubts upon the credibility and motives of those insisting upon that spurious argument.3[6]

Because the Report was prepared in part for litigation, it may contain “mental impressions, conclusions, opinion or legal theories of an attorney or other representative of a party concerning the litigation” (CPLR 3101 [d] [2]). The Court will therefore conduct an in camera review to redact any such material (see Blakesley v State of New York, 244 AD2d 947 [1997]; Wylie v Consolidated Rail Corp., 198 AD2d 884 [1993]).

It should be noted explicitly that there is no finding herein that claimants have made a showing that they have “substantial need of the materials in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means” (CPLR 3101 [d] [2]). At the time of the motion, defendant had not yet released to claimants the photographs of the accident scene and the inventory of items removed from the scene, nor had it allowed the access to inspect those items, all it agreed to do during the course of this motion. Because defendant did agree to allow this limited discovery and physical access, any determination by the Court that claimants would suffer undue hardship without the Report itself would be premature.

Finally, with respect to claimants’ request for a list of individuals who provided information for the Report (see item 3, supra at 5), it is clear under the law that the identity of witnesses who “could testify to the notice and existence of a defective condition which was the competent producing cause of an accident should be disclosed” (Bombard v County of Albany, 94 AD2d 910 [1983], appeal dismissed 60 NY2d 643 [1983]). Those individuals contributing to the Report certainly appear to fall within this category, which has been held not to be exempt from disclosure as attorney work-product (id.).

Accordingly, defendant is hereby ordered to produce a list of the individuals who contributed to the Report to claimants’ counsel within 10 days of the date of filing of this Decision and Order. Defendant is further ordered to produce the Report to the Court, in the version sealed by AAG Romani pursuant to the Order of the Court dated October 3, 2007, as well as any additional, more recent revisions, within 10 days of the date of filing of this Decision and Order.

Claimants’ motion and cross motion are granted to the extent set forth above. Defendant’s cross motion for a protective order prohibiting disclosure of the Report in its entirety is denied. The Court will conduct an in camera review and redact those portions of the Report deemed to be protected by CPLR 3101 (d) (2).

June 23, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on the motion and cross motions:


1) Defendant’s Privilege Log filed on October 9, 2007.

2) Notice of Motion (Motion No. M-74146) filed on October 29, 2007; Affirmation of Luis F. Ras, Esq., dated October 26, 2007, and attached Exhibits A through E.

3) Notice of Cross Motion (Cross Motion No. CM-74182) filed on November 7, 2007; Undated Affirmation of Matthew D. Jones, Esq., and attached exhibit.

4) Notice of Cross Motion (Cross Motion No. CM-74305) filed on December 10, 2007; Affirmation of Joseph F. Romani, AAG, dated December 7, 2007, and attached Exhibits A and B.


5) Defendant’s Memorandum of Law dated December 7, 2007.


6) Affirmation in Opposition of Matthew D. Jones, Esq. filed on January 4, 2008.


7) Affirmation in Reply of Luis F. Ras, Esq. filed on January 7, 2008.

8) Defendant’s Supplementary Affirmation dated March 6, 2008, and attached Exhibits A through G.
9) Correspondence to the Court dated March 17, 2008 from Joseph F. Romani, AAG, and attached exhibits.

10) Affirmation in Reply of Luis F. Ras, Esq., filed on March 27, 2008, and attached exhibits.

11) Claimants’ (Andrews) Memorandum of Law dated March 27, 2008, and attached Exhibits 1 through 3.

12) Affirmation in Reply of Matthew D. Jones, Esq., filed on March 28, 2008, and attached exhibit.

Filed papers: Claim No. 112760 filed on September 15, 2006; Verified Answer to Claim No. 112760 filed on October 26, 2006; Claim No. 112779 filed on September 19, 2006; Verified Answer to Claim No. 112779 filed on October 23, 2006; Claim No. 112960 filed on November 1, 2006; Verified Answer to Claim No. 112960 filed on December 4, 2006; Claim No. 113753 filed on May 29, 2007; Verified Answer to Claim No. 113753 filed on June 28, 2007; Claim No. 113581 filed on April 16, 2007; Verified Answer to Claim No. 113581 filed on May 14, 2007.


[1]. The Court, with the consent of the parties, has ordered that the claims be joined for purposes of discovery and trial due to their foundation in the same set of facts.
[2]. Although the structure is technically a culvert from an engineering standpoint, it is also defined as a bridge pursuant to Highway Law § 230.
[3]. Defendant has advised the Court (pursuant to the Court’s inquiry), by Affirmation of AAG Joseph F. Romani dated March 6, 2008, that no other reports have been prepared by defendant relating to the Collapse, excepting the Report which is the subject of discussion herein and those items already disclosed during the discovery process (none of which can be characterized as an accident report, in the traditional sense of the term).
[4]. Affirmation of AAG Joseph F. Romani dated December 7, 2007, in Support of Defendant’s Cross-Motion for Protective Order and in Opposition to Claimant’s Motion and Cross-Motion to Compel Disclosure, ¶ 8.
[5]. Affirmation of AAG Joseph F. Romani dated December 7, 2007, in Support of Defendant’s Cross-Motion for Protective Order and in Opposition to Claimant’s Motion and Cross-Motion to Compel Disclosure, ¶ 5.

[6]. Id. at ¶ 7.

Defendant also claims that the “[R]eport is not statistical or factual tabulation of data, or instructions to staff that affect the public, or a final agency policy determination, and thus, Public Officers Law § 87 (2) (g) exceptions apply” such that the document is also not subject to disclosure under the Freedom of Information Law (id.).
[7]. Affidavit of Robert Burnett sworn to December 4, 2007, ¶ 4.
[8]. Id. at ¶ 6.
[9]. Id. at ¶ 7.
1[0]. Id. Obviously, if Burnett was instructed not to share the Report with the Federal Highway Administration, defendant cannot in the future contend that, pursuant to the provisions of 23 USC § 409, the Report is neither subject to discovery nor admissible into evidence in a court proceeding (see Reynold v City of New York, 254 AD2d 159 [1998]).
[1]1. Id. at ¶ 12.
1[2]. Id. at ¶ 15.
1[3]. These other DOT employees presumably contributed to Burnett’s Report, as defendant alleges no other reports were prepared (see n 3).
1[4]. Affidavit of Janice A. McLachlan sworn to December 6, 2007, ¶ 3.
1[5]. Id.
1[6]. Id.

1[7]. DOT did prepare two “Crash Facsimile Reports” pursuant to Federal Regulations, which cumulatively
consist of a scant two pages of data indicating little more than the names of the decedents, their vehicle ID numbers, and the location of the accident (AAG Joseph F. Romani’s Supplementary Affirmation in Response to Court Inquiries dated March 6, 2008, Exhibit F). In the Court’s view, these do not comprise what is commonly understood to be an “accident report.” Such a document would presumably, in an instance of this nature, contain such items as a discussion of the design of the structure and whether that design was in compliance with applicable standards, the specific materials and processes used in the construction, the results of any maintenance and inspection reports, a detailed statement of the circumstances and facts surrounding the collapse, and a forensic analysis of the cause or causes of the failure.
1[8]. AAG Joseph F. Romani’s Supplementary Affirmation in Response to Court Inquiries dated March 6, 2008, ¶ 6.
1[9]. AAG Joseph F. Romani’s letter dated March 17, 2008, p 2.
2[0]. Id. at p 3.
2[1]. Affidavit of Sreenivas Alampalli sworn to March 14, 2008, ¶¶ 7, 8.
[2]2. Attachment to AAG Joseph F. Romani’s letter dated March 17, 2008, following the Affidavit of Sreenivas Alampalli sworn to March 14, 2008.
2[3]. AAG Joseph F. Romani’s letter dated March 17, 2008, p 3.
2[4]. Id. at p 2.
2[5]. Affirmation in Opposition of Matthew D. Jones, Esq., undated, served March 28, 2008, ¶ 11.
2[6]. The Court’s letter dated February 22, 2008.
2[7]. AAG Joseph F. Romani’s Supplementary Affirmation in Response to Court Inquiries dated March 6, 2008, ¶ 8.
2[8]. Affidavit of Richard Church, sworn to February 26, 2008, submitted in opposition to defendant’s motion to preclude (Motion No. M-74518).
2[9]. Memorandum of Law of Peter H. Bouman, Esq. dated March 27, 2008.
3[0]. Affirmation in Reply of Luis F. Ras, Esq., dated March 27, 2008, Exhibit B.
3[1]. AAG Joseph F. Romani’s Supplementary Affirmation in Response to Court Inquiries dated March 6, 2008, ¶ 9.
3[2]. It should be noted that no aspersions are being cast upon defendant’s litigation counsel who argued the motion, AAG Joseph F. Romani. Based upon the affidavits of Janice A. McLachlan, Robert Burnett, and Sreenivas Alampalli, it is clear that DOT and its agency counsel have clearly determined the course of action taken by defendant in this matter, at least as it pertains to the instant motions.
[3]3. AAG Joseph F. Romani’s letter dated March 17, 2008, p 2.
3[4]. Id.
3[5]. Any contention that the Report should not be released because it is still only in “draft form” must be rejected, as the Report has not been finalized only because DOT’s counsel has prevented Burnett from completing the Report, in obstruction of DOT’s clear obligations.
3[6]. See n 32.