Let The Lady Sing In A Personal Injury Claim

An effort by the Metropolitan Opera to invoke workers’ compensation law in a matter involving a rather unique occupation led to a decision of the New York Appellate Division for the First Judicial Department

Defendant Metropolitan Opera Association, Inc. (the Met) operates the Metropolitan Opera House at Lincoln Center. Plaintiff, Wendy White, is a renowned opera singer who has been featured in more than 500 performances at the Met over the course of 23 years. This personal injury action arises from plaintiff’s fall from an elevated platform while performing at the Met…

Plaintiff alleges that, on December 17, 2011, during her performance of the role of Marthe in the Met’s production of the opera Faust, she fell and was seriously injured while walking from a backstage staircase to an on-stage elevated platform. She alleges that the accident was caused by a defect in the set’s design or construction resulting from the Met’s negligence. She further alleges that she performed at the opera house pursuant to a standard contractor’s agreement between the Met and her corporation, Wendy White, Inc. (WW, Inc.), and that neither she nor WW, Inc. were the Met’s “employees.”

The Met moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), arguing that documentary evidence conclusively established that plaintiff was an employee engaged in the performing arts, as defined by WCL § 2(4), or, alternatively, a special employee of defendant, since the Met controlled the manner in which she performed her work, and that therefore her claim was barred by the exclusive remedy provision of WCL § 11.

The star responds

Plaintiff submitted her own affidavit, in which she averred that she was not employed by the Met but, instead, by WW, Inc. She explained that she was always paid by WW, Inc., and that WW, Inc. only received 1099’s, not W-2’s, from the Met. She also did not receive any employment benefits from the Met, and was in fact told that she did not qualify for the Met’s health insurance plan because she was not an employee.

Plaintiff asserted that she was a “star” and that, as such, she had “full artistic control” over her performance, including choosing “the timbre, the volume, the projection, and all of the artistry in the form of nuance, inflection and the acting.” She claimed to have received no training, supervision, or direction from the Met with respect to how to perform her role, and explained that her voice lessons and coaching were paid for by WW, Inc. She admitted, however, that the Met provided her make-up, costumes, and wigs, told her “where and when to attend rehearsals and performances,” and “blocked out the basic staging with entrances and exits” – although she purported to have veto power even with respect to staging decisions.

Additionally, plaintiff stated that she was not aware that the Met purchased workers’ compensation insurance for her, and never consented to any claim being filed thereunder. She explained that she only found out later that certain medical bills had been paid by the Met’s insurance carrier, and rejected any subsequent offers of payment. Instead, she filed a claim in New Jersey under WW, Inc.’s workers’ compensation insurance policy.

Plaintiff also submitted statements by Assemblyman Roger J. Robach and New York State Senator James J. Lack, the sponsors of the 1986 amendment to the WCL that added section 2(4), addressing the employment status of performing artists. Robach explained in a letter to the Governor’s Counsel that the amendment was intended to clarify that “the vast majority [of musicians and performers] who are not in the star’ category” were employees entitled to workers’ compensation benefits, without having to litigate their status. In an affirmation submitted with the motion, Lack explained that “[t]he bill was not intended to compel star’ performers, who are independent professionals able to negotiate the terms of their engagements, to become employees’ of the venues at which they perform.”

The court agreed that Ms. White was not an employee covered by workers’ compensation law. (Mike Frisch)