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Injured worker's personal injury suit against Berkshire Hathaway unit revived

Injured worker's personal injury suit against Berkshire Hathaway unit revived

A federal appeals court on Monday reversed a ruling in favor of a Berkshire Hathaway Inc. unit in a case involving an injured worker because of ambiguity surrounding the relationship of the worker's firm with the policyholder.

Jose Montesdeoca, a driver for New York-based Samuel Feldman Lumber Co., was injured on Dec. 3, 2011, while delivering sheetrock to a construction project operated by Port Washington, New York-based 101-19 37th Avenue L.L.C., according to court papers in U.S. Underwriters Insurance Co. v. 101-19 37th Avenue L.L.C, Fereydoun Pouratian.

Wayne, Pennsylvania-based U.S. Underwriters Insurance Co., whose ultimate parent is Berkshire Hathaway, had issued a commercial general liability policy to 101-19 for the period Oc. 24, 2011, through Jan. 24, 2012, according to court papers. The policy included a bodily injury exclusion covering “all employees, volunteer workers, temporary workers, casual laborers, contractors and subcontractors.”

Mr. Montesdeoca, who successfully filed for, and received, workers compensation benefits, also filed suit against defendants including 191-19 for personal injury claims.

Underwriters denied coverage on the basis of the bodily injury exclusion, and then filed suit in U.S. District Court in Brooklyn for summary judgment in the case. The court granted the motion in March 2014.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in New York unanimously reversed that ruling on Monday. “The words 'contractor' and “subcontractor' are not defined in the policy at issue,” says the ruling. “As a result, we are unable to determine whether Feldman Lumber, the employer of the injured party, is a 'contractor' or 'subcontractor' within the meaning of the exclusion,” said the ruling, in remanding the case to the lower court for further proceedings.

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