ROCHESTER (NY)
Rochester Beacon [Rochester NY]
October 10, 2022
By Will Astor
Gannett Corp. is unfairly stalling any handover of documents needed to help former Democrat and Chronicle newspaper carriers prove they were molested as young teenagers decades ago by an adult route supervisor, an attorney for one of the ex-carriers charges.
Meanwhile, Gannett is doubling down on an aggressive strategy aimed at entirely thwarting seven former news carriers’ efforts to sue it for allowing the alleged sexual abuse to occur. That strategy centers on the media chain’s assertion that New York’s workers’ compensation system, and not the Child Victims Act, is the former carriers’ only recourse.
The former paperboys sued Gannett in 2019 shortly after the CVA took effect. The carriers claim they were sexually abused as teenagers in the 1980s by Jack Lazeroff, a D&C route supervisor. Lazeroff died in 2003 at 74.
Passed and signed into law as a fast-rising tide of long-buried abuse accusations were surfacing against organizations like the Roman Catholic Church and the Boy Scouts of America, the CVA opened a temporary window for victims of childhood sexual abuse to seek damages from their abusers who otherwise would have been protected by a long-expired statute of limitations.
The Gannett case is unique in that unlike the former altar boys, parochial school students and Boy Scouts pressing most of the thousands of CVA claims filed since the law’s 2019 passage, the carriers were employees, the company maintains.
The relatively few claims registered against Gannett stand in contrast to more than 400 registered against the Roman Catholic Diocese of Rochester and the thousands filed against the Boy Scouts, which both filed Chapter 11 bankruptcy petitions to deal with the flood of sex-abuse complaints.
While the church and Boy Scout cases have plodded through bankruptcy courts, the Gannett case has inched through a state court.
In answering papers filed early on, Gannett denied responsibility for any abuse its former newspaper carriers might have suffered, but also maintained that state courts are powerless to rule on its guilt or innocence.
Carrier attorney Michael Dowd of Sweeny, Reich & Bolz alleges rather than cooperate with the carriers’ requests for documents that might bolster their case, Gannett supplied tens of thousands of pages of irrelevant materials while withholding relevant materials under spurious claims of attorney-client privilege.
To counter Dowd’s claim, Gannett lawyer Andrew Dean, an associate in Harter Secrest & Emery’s Rochester office, submitted a May 9 email he sent to Dowd contending that the format in which plaintiffs lawyers asked for discovery demanded that records in question be included. The volume of such records in any event is wildly overstated, Dean maintained. All claims of privilege are valid, he asserted.
Dowd is asking the court to compel Gannett to cough up the disputed records and communications or for the judge overseeing the case to herself review them to determine whether privilege applies. Dean indicated in filings that Gannett could be open to the latter option.
In the meantime, Gannett continues to press its main argument: that the paperboys were Democrat and Chronicle employees, and thus they never had a right to sue under the CVA but should have instead sought satisfaction under the only remedy available under New York law, the state’s workers’ compensation system.
Workers’ comp is a system under which employees give up the right to sue employers in exchange for a sure path to treatment for injuries and compensation for lost wages. State law in New York requires employers to carry special insurance to cover payouts to workers for treatment and lost pay. The validity of claims and extent of benefits is determined by the Workers’ Compensation Board.
Passed in the early 20th century, New York’s Workers’ Compensation Act, like similar laws in other states, calls for workers’ comp to be the sole remedy for workplace injuries or ills contracted as a result of workplace conditions. It bars workers who get workers’ comp benefits from suing employers for the same injury.
As previously reported by the Rochester Beacon, Gannett last month called for a halt in the nearly three-year-old proceedings to test its claim that the ex-paperboys are ineligible to make CVA claims because they were employees, and can only seek relief under the state’s workers’ compensation system.
Last Friday, the media company filed a flurry of documents to back its contention that the judge assigned to try the carriers’ case as a CVA claim has to turn it over to the state’s Workers’ Compensation Board. Under workers’ comp law, Gannett’s lawyers claim, the former carriers’ case would die because it would not have been timely filed.
Leander James is an Idaho attorney who has pressed CVA claims for childhood sexual assault victims in several states including New York. Currently representing 76 abuse survivors pressing CVA claims against the Rochester Diocese, he is not involved in the Gannett CVA cases.
“I have faced similar claims by employers in CVA cases in several states,” says James. “They all failed.”
James says he is not certain whether the tactic has been tried in New York, a key point since terms of each state’s workers’ comp systems are determined by that state’s laws.
In New York, Gannett’s case is ironclad, maintains Gannett lawyer Peter Abdella, in papers filed Sept. 30.
“Where an employer secures compensation for its employees (by obtaining insurance), those employees will enjoy secure benefits for their injuries. However, the price for these secure benefits is the loss of the common-law tort action in which greater benefits might be obtained. In other words, for injuries caused by an employer’s negligence, workers’ compensation is an exclusive remedy,” writes Abdella, a partner in Harter, Secrest & Emery’s Rochester office.
In Abdella’s analysis, the former carriers are in a Catch-22 bind: If they were employees, their only recourse under state law is workers’ comp; if they were not employees, only Lazeroff and not Gannett can be called to task.
In further twist, Abdella maintains that because the ex-carriers failed to apply for workers’ comp benefits as teens, or when they filed CVA claims, as adults they would be too late to seek workers’ comp benefits now. In short, the Gannett attorney asserts, whatever pain or injury they might have suffered, the carriers are out of luck.
Citing a desire to refrain from speaking until they file answering papers, attorneys representing the former carriers have declined to comment on specifics of Gannett’s workers’ comp gambit.
Echoing a point raised by attorneys pressing the former paperboys’ claims, James sees such arguments as a facile end run around the Legislature’s clear intent in passing the CVA: to give victims abused by sexual predators as children a clear shot at righting decades-old wrongs they had virtually no defense against as children.
Perhaps, counters Abdella in his Sept. 30 brief. But if the law leaves the former carriers in the lurch, the fault lies not with his client but with the Legislature.
“By securing compensation to its employees, an employer trades the ongoing expense of insuring
against injuries (that might never occur) for the certainty of knowing that it will not be subject to fending off liability in a forum from which the Legislature provided a shield,” Abdella argues.
A 2019 bill advanced in the state Senate would have exempted all workplace sexual claims from workers’ comp. The measure never made it out of committee, however, a point Abdella notes.
Absent such legislative action, writes the Gannett attorney, quoting a 1982 workers’ comp court ruling, “‘the workers’ compensation bar applies even though the employee suffers some loss for which he cannot be compensated under the Workers’ Compensation Law. … However harsh such a result may seem under certain circumstances, the remedy is with the Legislature and not the courts.’”
The question immediately before the judge presiding over the carriers’ CVA case is whether to accede to Gannett’s request to call a halt to the court case to let the Workers’ Compensation Board weigh in.
The presiding judge, Erie County Supreme Court Justice Deborah Chimes, has yet to rule on any of the questions raised by recent filings. If she follows a schedule laid out by Gannett’s lawyers, such a ruling would not come until after the carriers’ lawyers file answers to Gannett’s briefs in mid-November and attorneys for both sides present oral arguments at a future date.
Will Astor is Rochester Beacon senior writer. The Beacon welcomes comments from readers who adhere to our comment policy including use of their full, real name.