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Plaintiff’s attorney sees settlement by Niagara County in NCCC construction injury liability case

LOCKPORT – The attorney for a man whose leg was crushed in a construction accident at Niagara County Community College said he believes that the County Legislature wants to settle the case instead of continuing with appeals.

The Legislature met behind closed doors last week to talk about the case.

“It is my understanding that additional authorization may have been granted to resolve the claim,” said Thomas H. Burton, attorney for Michael J. Lombardo, 54, of Somerset, who won a $7.25 million judgment in a 2015 nonjury trial.

County Manager Richard E. Updegrove and County Attorney Claude A. Joerg refused to speak about what happened in the closed meeting.

“Claude briefed us on the $5 million we’re trying to recoup,” said Legislature Majority Leader Randy R. Bradt, R-North Tonawanda.

The county is suing the construction company’s insurer in federal court, contending that the company backed out of covering $5 million of Lombardo’s award “on the eve of trial,” as Updegrove put it.

If the county loses that case, it must pay the entire verdict on its own, and Updegrove said, “Although I would perceive that scenario as unlikely, if hypothetically that did happen, we would have to issue long-term bonds.”

The county is self-insured rather than through a liability insurance company. Its insurance fund generally contains between $2 million and $3 million. “Being self-insured allows us to vigorously defend every lawsuit,” Updegrove said. “We choose the lawyers and we decide the defense.”

Updegrove said self-insurance “has saved the county a lot of money” and has shifted the county’s focus to risk reduction in the workplace.

State Supreme Court Justice Ralph A. Boniello III, who issued the judgment for Lombardo, refused in February to change it, and the county has filed a notice of appeal to contest that decision in the Appellate Division of State Supreme Court.

Boniello, who was Niagara County attorney before taking the bench, ruled that the county was liable for the injuries that Lombardo suffered when a heavy, unsecured stack of replacement windows tipped over and fell on his lower right leg May 27, 2008, as he stood in the bed of a truck belonging to his employer, TGR Enterprises of West Seneca.

Boniello said that under state labor law, the county was liable because it owned the job site and because it chose TGR’s staging area on campus.

Burton said that with the 9 percent annual interest rate he says is mandated in state law, the value of the judgment is now approaching $9 million. He said, “We were willing to discuss a settlement two years ago. We’re willing to discuss a settlement now, but it must recognize the county’s got a $9 million-plus exposure with a verdict from a highly respected judge.”

Joerg said, “I’ve been working to try to settle this case since before it went to trial, as well.” He said Burton is wrong on the interest cost, contending that the 9 percent law doesn’t automatically apply to municipalities and that a hearing still needs to be held to determine the current value of the award to Lombardo.

“There is no judgment at this time,” Joerg insisted.

email: tprohaska@buffnews.com