In an uninsured motorist subrogation suit, a Supreme Court judge has held that a schools traditional immunity from liability when using an independent contractor for bus services may lose that immunity if it knows that the bus company is subcontracting out the work, and the school does not take steps to ensure that the subcontractor is properly insured and licensed.

This action arose from subrogation claims for uninsured motorist benefits paid by plaintiff GEICO as a result of a motor vehicle accident that occurred on May 31, 2002. Defendants, St. Agnes Academic School and the Roman Catholic Diocese Of Brooklyn (RCDB) moved for dismissal on grounds that plaintiffs claims are barred by documentary evidence, and that the complaint fails to state a cause of action.

The school contacted Institutional Services Inc. (ISI), a corporate entity which provides various purchasing services to religious institutions, and requested transportation services for students to Great Adventure in Jackson, New Jersey sometime prior to May 31, 2002. Subsequently, ISI initiated a contract with Trans Classic Coach Corp. (Trans), a bus company, to provide buses for said event. Trans allegedly then subcontracted the transportation services to an uninsured bus company named Watts Tours, which provided two uninsured buses for the event. These buses collided with one another at a toll plaza on May 31, 2002 causing plaintiffs subrogee to suffer personal injuries.

Documentary Evidence Rejected

With respect to RCDBs motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) RCDB, submits a confirmation agreement between ISI and Trans regarding the provision of buses to transport students from [St. Agnes] to Jackson, N.J. This confirmation agreement, however, does not substantiate the defendants claims, as it merely shows an agreement between the busing company Trans and ISI for transportation services to and from [St. Agnes]. It does not specify terms, nor is it signed by either party involved. Accordingly, the court finds that this document is an estimate and not binding, and does not illuminate any other issues or support the claims made in this case.

The court further observes that in the cross-motion submitted by [St. Agnes], there was mention of a contract which required that Trans meet certain insurance requirements as well as forbidding Trans from subcontracting the work to other bus companies. However, the contract was not included in either of the defendants motion papers, and as such, the court has no basis to consider these allegations. Without evidence of contractual obligations, the court finds no reason to dismiss the plaintiffs cause of action. The court notes that the documentary evidence submitted, in the form of a confirmation agreement, fails to establish with whom liability rests when the transportation services were provided. Consequently, plaintiffs are entitled to discovery in an attempt to prove their claim.

Unless the claims are patently or demonstrably frivolous, the courts inquiry is limited to their sufficiency, as opposed to their merit. Based on this standard, the court finds plaintiff has alleged facts sufficient to survive a motion to dismiss.

Schools Obligations

The court notes that defendants are correct in asserting that Trans is the primarily liable individual. However, a question arises as to what obligations and duties a school actually has towards its students. Prior court decisions have abrogated the obligations once the school has entered into an agreement with an independent contractor. Where the school district has engaged an independent contractor to provide busing, the school is not responsible for the students safety once the children board the contractors bus, and consequently, the school district is not directly or vicariously liable for any violation of the Vehicle and Traffic Law 1174 (b) by the independent contractor (Chainani v. Board of Educ., 87 NY2d 370. See Womack v. Duvernay, 229 A.D. 2d 488).

The termination of the schools obligation, however, cannot exempt [St. Agnes] from liability without restriction or constraint. This court finds that an exception to this ruling is warranted as follows: Once St. Agnes knew, or should have known, that the buses which ISI would supply were not being provided, a reasonable inspection [should have been conducted], as may be required, including a request to see the drivers license and registration, proof of insurance, and to make a telephone call to ISI to confirm that the substitution was consistent with the standards established between the two entities and the industry.

Moreover, the court holds that RCDB cannot be held responsible, as it is not a proper party in this action. RCDB does not owe a duty to the students of St. Agnes nor do they hold a role as a guardian.

We have examined the parties remaining contentions and find them to be without merit. Accordingly, it is ordered, that defendant, [St. Agnes] motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7) is denied, and it is further ordered, [St. Agnes] motion for summary judgment pursuant to CPLR 3212 is denied; and it is further ordered that defendant RCDBs motion to dismiss pursuant to CPLR 3211(a)(7) is granted.

GEICO v. St. Agnes Academic School, Index no. 6697/05, NYLJ 10/30/06 (Supreme Court, Nassau County) (Winslow, j)