The $86.7 Million Bronx Verdict for a Laborer Impaled on Rebar in a Trench Collapse, Cut to $25 Million by the Trial Judge and Sustained at Just Under $20 Million After the First Department's 2007 Ruling

Frank Miraglia was 45 years old, a laborer employed by Lane & Sons Construction Corp. on a residential development going up on land owned by H&L Holding Corp. near the New England Thruway in the Bronx. Workers on the site crossed an open trench by walking on planks laid over it. Lane's own president would later testify that this was permitted, provided the men doubled the planks. Miraglia was crossing on a plank when it collapsed from under him. He fell into the trench and was impaled on a protruding steel reinforcement bar that entered at the scrotum and ran up to the L2 level of his spinal cord. He survived, but the rebar severed his spinal cord and left him a paraplegic with lifelong complications.

Because workers' compensation barred a direct suit against his employer, Miraglia sued the property owner, H&L Holding, in Supreme Court, Bronx County under index number 25228/00, invoking New York's scaffold law, Labor Law section 240(1), which puts nondelegable responsibility for elevation related hazards on owners and contractors. H&L brought Lane in as a third party defendant, and Lane, bound by an indemnification contract, took over the defense. Steven L. Hess of the Manhattan firm Simonson, Hess & Leibowitz, P.C. tried the case for Miraglia before Justice George D. Salerno. The trial court directed a verdict on liability, and on February 13, 2004 the jury returned a damages verdict of $86,735,134, one of the largest injured worker verdicts New York had seen. The National Law Journal ranked it among the top verdicts in the country for 2004.

What happened next has to be told just as plainly, because most of that number did not survive. Justice Salerno found the award excessive and reduced it to $25,030,134, and judgment was entered on that reduced amount in May 2005, including $5 million for past pain and suffering, $10 million for future pain and suffering over 35 years, and $8,295,000 for future medical expenses. Lane appealed, and on January 9, 2007 the Appellate Division, First Department modified again. The court rejected every liability argument, holding that Miraglia was not a recalcitrant worker and could not be blamed as the sole cause of his own injuries, and it left the $5 million past pain and suffering award intact. But it found the future pain and suffering figure excessive even for injuries this catastrophic, ordering a new damages trial unless Miraglia accepted $5 million instead of $10 million, and it cut future medical expenses to $8,056,222 because the jury's figure had double counted lost earnings. Miraglia stipulated to the reduction, a fact Justice Salerno recorded in a later decision, and the surviving judgment came to just under $20 million.

Even then the fight was not over. H&L, the nominal defendant, had about $1 million in insurance and few assets, so the real money question was Lane's indemnification obligation. In September 2007 Justice Salerno refused Lane's attempt to rewrite the judgment to escape direct liability, holding that Lane had charted its own course when it agreed before trial to defend and indemnify the owner. The appellate briefing was handled by Pollack, Pollack, Isaac & DeCicco, but the verdict itself belonged to the trial team: court records name Simonson Hess & Leibowitz, P.C. as Miraglia's counsel, and the National Law Journal's verdict listing credits Steven L. Hess by name. Hess practices today at Hess & Leibowitz, PLLC, the successor firm, and the case remains the defining result of his career: an $86.7 million jury verdict, and a sustained recovery of just under $20 million for a paralyzed laborer, with both numbers part of the record.