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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2017 NY Slip Op 08027 [155 AD3d 900]
Regular Panel Decision
Nov 15, 2017

Poalacin v. Mall Properties, Inc.

The plaintiff, Nelson Poalacin, was injured when he fell from a defective ladder while working at a retail property undergoing refurbishment. He sued multiple defendants, including the property owners (Mall Properties, Inc., KMO-361 Realty Associates, LLC, The Gap, Inc.), the general contractor (James Hunt Construction), and subcontractors (Weather Champions, Ltd., APCO Insulation Co., Inc.), alleging violations of Labor Law §§ 240 (1), 200, and 241 (6), as well as common-law negligence. The Supreme Court initially denied Poalacin's motion for summary judgment on Labor Law § 240 (1) and later granted the defendants' motions to dismiss the complaint. On appeal, the Appellate Division reversed the Supreme Court's orders, granting Poalacin summary judgment on the Labor Law § 240 (1) claim and denying the defendants' motions to dismiss the other Labor Law claims. The court also made declarations regarding indemnification and insurance coverage between the parties, finding Harleysville Insurance's policy was excess to Netherlands Insurance Company's policy, and remitted the matter for judgment entry.

Labor LawConstruction AccidentWorkplace SafetyLadder FallSummary JudgmentIndemnificationInsurance DisputesAdditional InsuredCommon-Law NegligenceThird-Party Action
References
37
Case No. ADJ8002816, ADJ8316468
Regular
Oct 05, 2016

LORENZO TOSCANO CORONA vs. KOOSHAREM, doing business as SELECT STAFFING, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION (CIGA), ULLICO CASUALTY INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, RSI HOME PRODUCTS, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, LIBERTY MUTUAL INSURANCE COMPANY

This case involves a dispute over workers' compensation coverage where applicant Lorenzo Toscano Corona was injured, allegedly while employed through a staff leasing arrangement between Koosharem (Select Staffing) and RSI Home Products. The Appeals Board granted reconsideration to address arguments by ACE American Insurance Company and Travelers Property Casualty Company that their policies excluded coverage for the applicant. The Board rescinded the prior decision due to the arbitrator's failure to adequately document the proceedings and admitted exhibits as required by law. The matter is returned to the arbitrator to create a proper record and evaluate whether ACE and Travelers' policies contained valid exclusions for the applicant's injuries, considering relevant insurance code provisions and endorsements.

Staff leasingGeneral employerSpecial employerJoint and several liabilityOther insuranceInsurance Code section 1063.1(c)(9)Hold harmless clauseWCAB Rule 10566Hamilton v. Lockheed Corp.Labor Code section 3602(d)
References
6
Case No. ADJ 1082421 (RIV 00, ADJ 2895025 (RIV 00, ADJ 4589469 (RIV 004
Regular
Oct 26, 2009

Robert Phillips vs. HITCHCOCK AUTOMOTIVE, CAMBRIDGE INTEGRATED SERVICES GROUP, INC., STATE COMPENSATION INSURANCE FUND, SUNRISE FORD, STATE COMPENSATION INSURANCE FUND, BOARD FORD, INC., AMERICAN ALTERNATIVE INSURANCE c/o RISK ENTERPRISE MANAGEMENT, REDLANDS FORD, ACE PROPERTY AND CASUALTY CO.

The Arbitrator found that applicant suffered a single continuous trauma injury. SCIF and Ace Property filed petitions for reconsideration. The Board affirmed the Arbitrator's decision, except for amending Finding 7 and adding an award of contribution.

Workers' Compensation Appeals BoardRobert PhillipsHitchcock AutomotiveCambridge Integrated Services GroupState Compensation Insurance FundSunrise FordRedlands FordACE Property and Casualty CompanyGallagher Bassett ServicesInc.
References
0
Case No. ADJ746026 (SJO 0221595) ADJ1315805 (SJO 0221596) ADJ2490198 (SJO 0221597) ADJ1525795 (SJO 0234303)
Regular
Feb 03, 2010

GILBERT GASKA vs. EAST SIDE UNION HIGH SCHOOL, ACE/USA, CALIFORNIA INSURANCE GUARANTEE ASSOCATION

This case involves claims for reimbursement between two insurers covering applicant's industrial injuries. CIGA, representing an insolvent insurer, sought reimbursement from ACE/USA for medical benefits paid. The arbitrator initially awarded CIGA approximately $105,000, later amended to $138,555.15 due to a clerical error. ACE/USA petitioned for reconsideration, arguing CIGA's claim was untimely and improperly based on contribution or subrogation. The Board dismissed CIGA's petition as moot because the corrected award had already been issued. The Board denied ACE/USA's petition, clarifying CIGA's claim was for reimbursement under Insurance Code section 1063.1, not untimely contribution or subrogation, and that ACE/USA was liable due to providing "other insurance" for the same injuries.

Workers' Compensation Appeals BoardCalifornia Insurance Guarantee AssociationCIGAACE/USAFremont Compensation Insurance Companyinsolvencycumulative injuryspecific injuryreimbursementcontribution
References
3
Case No. 2014 NY Slip Op 05765
Regular Panel Decision
Aug 13, 2014

Commissioners of State Insurance Fund v. Kaywood Properties, Ltd.

The case involves an appeal by Kaywood Properties, Ltd., from an order denying its motion for summary judgment. The Commissioners of State Insurance Fund sued Kaywood Properties for allegedly unpaid workers' compensation insurance premiums. Kaywood Properties argued it had no employees during the relevant period, thus owing no premiums. The Supreme Court denied their motion, and the Appellate Division affirmed this decision. The Appellate Division found that Kaywood's affidavit contained only conclusory assertions without sufficient evidentiary support to establish its prima facie entitlement to judgment.

Workers' CompensationInsurance PremiumsSummary JudgmentAffirmationAppellate ReviewEmployer LiabilityPayrollEvidentiary SupportConclusory AssertionsSupreme Court
References
6
Case No. 61 AD3d 88
Regular Panel Decision

Lighthouse Pointe Property Associates LLC v. New York State Department of Environmental Conservation

The petitioner, Lighthouse Pointe Property Associates LLC, challenged the New York State Department of Environmental Conservation's (DEC) decision to deny its properties' inclusion in the Brownfield Cleanup Program (BCP) through a CPLR article 78 proceeding. DEC's denial was based on its determination that the properties did not meet the statutory definition of a brownfield site, arguing that contamination levels were minimal and did not complicate redevelopment, with issues primarily stemming from solid waste. Lighthouse presented substantial evidence of contamination, including hazardous wastes exceeding cleanup standards, which had demonstrably hindered redevelopment efforts by impacting financing and regulatory approvals. The Supreme Court initially sided with Lighthouse, but the Appellate Division reversed, deferring to DEC's expertise. The Court of Appeals ultimately reversed the Appellate Division, concluding that DEC's interpretation of "brownfield site" was arbitrarily narrow and contrary to the broad legislative intent of the BCP, thereby reinstating the Supreme Court's judgment to grant Lighthouse's application.

Brownfield Cleanup ProgramEnvironmental Conservation LawContaminationReal Property RedevelopmentHazardous WasteSolid Waste LandfillSoil Cleanup ObjectivesAppellate ReviewStatutory InterpretationArbitrary and Capricious
References
4
Case No. ADJ7949522
Regular
Jul 28, 2016

JORGE INZUNZA vs. CAAMACOSTA, INC.; TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA; ACE INSURANCE COMPANY

Travelers sought reconsideration of a WCAB arbitrator's order denying its contribution claim against ACE. The arbitrator discovered a clerical error regarding ACE's coverage and issued an amended order correcting it. The WCAB dismissed Travelers' petition because the amended order resolved the issue, rendering Travelers not aggrieved. Therefore, Travelers' petition for reconsideration was dismissed.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and OrderContribution claimCumulative traumaClerical errorAmended Findings and OrderAggrieved partyLabor Code § 5900Dismissed Petition
References
0
Case No. MISSING
Regular Panel Decision

Romano v. Whitehall Properties

An employee of Sorbara Construction Company was injured at a construction site owned by Whitehall Properties, LLC. The employee received workers' compensation benefits from Travelers Indemnity Insurance Company of America, Sorbara's carrier. The employee also filed a negligence action against Whitehall and the general contractor, Kreisler Borg Florman General Construction Co., Inc. This negligence action was settled, with Travelers contributing under a general liability policy. Whitehall and Kreisler appealed a Supreme Court order denying their motion to extinguish Travelers' workers' compensation lien against the settlement. The appellate court affirmed, ruling that the anti-subrogation rule did not apply because Travelers' workers' compensation obligation arose from a separate policy issued to Sorbara, not the general liability policy covering Whitehall and Kreisler, thus allowing Travelers to assert its lien.

Workers' Compensation LienAnti-Subrogation RuleGeneral Liability PolicyPersonal Injury DamagesConstruction AccidentEmployer NegligenceInsurance CarrierSettlement AgreementAppellate DecisionThird-Party Action
References
6
Case No. 2016 NY Slip Op 08317 [145 AD3d 506]
Regular Panel Decision
Dec 13, 2016

Burgos v. Premiere Properties, Inc.

Joaquin Burgos, a building porter, sustained injuries after tripping over a tool bag on a stairway. He sued Premiere Properties, Inc., the building management company, alleging negligence and Labor Law violations. The Supreme Court denied Premiere's motion for summary judgment. On appeal, the Appellate Division, First Department, affirmed the denial. The court found issues of fact regarding Premiere's potential liability as a statutory agent under Labor Law § 200 due to its extensive control over the construction site, as well as whether Premiere had actual or constructive notice of the hazardous condition. Claims under Labor Law §§ 240(1) and 241(6) were deemed abandoned.

Personal InjuryPremises LiabilityConstruction Site SafetyLabor Law 200Statutory AgentSummary Judgment DenialTrip and FallSafe Place to WorkManagement Company LiabilityAppellate Affirmation
References
5
Case No. MISSING
Regular Panel Decision

Agriculture Ins. Co., Inc. v. Ace Hardware Corp.

Plaintiff Agricultural Insurance Company, Inc., as assignee of injured worker Robert T. Treadway, Jr., moved for partial summary judgment on liability under N.Y. Labor Law § 240(1) against defendants Ace Hardware Corporation and Butler Construction Company. Treadway was severely injured when he fell from an elevated height at a construction site after the steel beam he was standing on collapsed. Although provided with a safety harness and line, these were attached to the very beam that failed, rendering them inadequate. The court granted the plaintiff's motion, concluding that the defendants violated § 240(1) by failing to provide proper protection and that this failure was the proximate cause of Treadway's injuries. The court rejected arguments regarding the admissibility of an accident report, a superceding cause (wind), and Treadway's contributory negligence.

N.Y. Labor LawSummary JudgmentLiabilityConstruction AccidentElevated WorkSafety DevicesProximate CauseContributory NegligenceHearsay ExceptionParty Admission
References
31
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