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May 04

Workers’ comp bars flight attendant families’ claims, Colgan Air says

May 3 (Westlaw Journals) –  New York workers’ compensation laws bar claims brought by the families of two flight attendants killed in the crash of Continental Connection Flight 3407 in Buffalo, flight operator Colgan Air says.

In a motion and memorandum filed in the U.S. District Court for the Western District of New York, Colgan Air contends that the state’s workers’ compensation statutes prohibit the claims brought against it on behalf of the flight attendants.

The litigation stems from the February 2009 crash of Continental Connection Flight 3407 operated by Colgan.  The Bombardier Dash 8-Q400 plane was en route from Newark, N.J., to Buffalo.

As the aircraft approached Buffalo Niagara International Airport in icy conditions, the flight crew lost control of the plane.  The resulting crash killed everyone on board.

The lawsuits, which focus on the aircraft’s allegedly ineffective deicing equipment, allege Continental and Colgan negligently and recklessly operated and monitored the flight and allowed it to fly in hazardous weather.

Neil J. Prisco Jr. filed a wrongful-death action over the death of his wife, Donna, and Salvatore Poidomani filed a separate action over the death of his sister Matilda Quintero.

Both plaintiffs allege Colgan Air was negligent, careless, reckless and engaged in willful and wanton conduct.

Seeking dismissal, Colgan Air notes that neither complaint alleges the airline acted with intent to cause the flight attendants’ deaths.

The applicable workers’ compensation laws bar employees from pursuing claims against their employer unless the injury arose from an intentional wrong, the airline argues.

“A plaintiff can establish that a defendant committed an intentional wrong only by showing that the defendant either had an ‘actual intent’ or ‘subjective desire’ to injure,” the defendant says.

Because the plaintiffs make no such allegation, Colgan Air says it should be dismissed from the suits.

In re Air Crash Near Clarence Center, N.Y., on Feb. 12, 2009, No. 1:09-mc-02085, memo and motion to dismissfiled (W.D.N.Y. Apr. 8, 2011).

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