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Niagara County to settle construction worker’s $5.5 million injury lawsuit

LOCKPORT – The Niagara County Legislature is to vote Tuesday to pay a $5.5 million settlement to a construction worker whose leg was crushed at Niagara County Community College in 2008.

However, the county will receive part of the money from the contractor’s insurers and is continuing to pursue a lawsuit against another insurance company, which the county says unjustly refused to pay $5 million in the case.

The injured man, Michael J. Lombardo, 54, of Lake Road, Somerset, will end up with a little less than two-thirds of the $5.5 million, according to his attorney, Thomas H. Burton.

County Attorney Claude A. Joerg said Friday that two insurance companies hired by the contractor, TGR Enterprises of West Seneca, will pay $1 million each toward the settlement. The county will pay $2 million up front from its property and casualty insurance fund plus another $300,000 a year for five years, starting in July 2017.

“I think it’s a good result,” Joerg said. State Supreme Court Justice Ralph A. Boniello III awarded Lombardo a $7.25 million verdict in 2015 after a nonjury trial, and in February, he rejected the county’s efforts to reduce that.

“We backed off what would have been an $8 million exposure to the county if the case had been sustained on appeal,” Burton said.

“Settlements like this avoid risk for everyone. Justice Boniello took everyone to the woodshed for a resolution. In the final analysis, this was in the best interest of my man and puts this incredibly complicated case to rest once and for all.”

Burton said that if the county had continued its appeals, interest on the damage award would have mounted at the rate of 9 percent, or $652,500, per year. Joerg said the interest rate would have been less because of an exception in the law for local governments.

Asked if he was concerned the original judgment might have been reduced by appellate courts, Burton said, “We were confident, but if any lawyer tells you cases like this are an absolute sure thing, it’s time to change lawyers.”

Joerg said Burton was contending that the county wouldn’t be able to pay such a damage award, but Joerg said the county has the $2 million for the installment on hand in its self-insurance fund.

County Treasurer Kyle R. Andrews said the county’s $24 million surplus won’t be touched, and he expects the county’s bond rating also will not be affected by the settlement.

“This is something that was anticipated and disclosed during our meetings with the rating agencies,” Andrews said. “It could put a little pressure on the budget with the tax cap environment.”

But he said the county has been “fiscally conservative” and will find a way to fit the five annual payments into the insurance fund.

Lombardo was hurt May 27, 2008, when he was standing in the back of a moving flatbed truck hauling stacks of large replacement windows along a driveway at the NCCC campus in Sanborn. The unsecured load shifted, and several of the heavy windows tipped over, snapping his lower right leg.

State labor law puts the onus on the property owner, the county in this case, for injuries to construction workers.

The county is hoping for reimbursement for its losses in its $5 million lawsuit in U.S. District Court against Netherlands Insurance Co. and Excelsior Insurance Co., which just before the beginning of the trial before Boniello, refused to provide coverage for the county.

On Wednesday, U.S. District Judge Richard J. Arcara dismissed the insurers’ motion to throw out the case as well as the county’s effort to move the case back to State Supreme Court, where it began.