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

Case No. MISSING
Regular Panel Decision

Ace Fire Underwriters Insurance Company v. Special Funds Conservation Comittee

An employee of Coca-Cola Bottling Company sustained a work-related injury in March 2007 and was awarded workers’ compensation benefits, payable by Ace Fire Underwriters Insurance Company. The employee was classified with a permanent partial disability, making the Special Disability Fund responsible for reimbursing Ace Fire after 260 weeks under Workers’ Compensation Law § 15 (8). The injured employee settled a third-party personal injury action with Ace Fire's approval, but without the Special Disability Fund's consent. Ace Fire then commenced a proceeding to compel the Special Disability Fund's consent nunc pro tunc under Workers’ Compensation Law § 29 (5). The Court of Appeals held that if the Special Disability Fund's consent is required as a lienor under section 29 (1), the failure to obtain it can be cured by a court order nunc pro tunc under section 29 (5). The order of the Appellate Division was reversed, and the matter remitted to Supreme Court for further proceedings.

Workers' CompensationSpecial Disability FundThird-Party ActionLienNunc Pro TuncSettlement ApprovalStatutory InterpretationReimbursementPermanent Partial DisabilityInsurance Carrier Liability
References
1
Case No. MISSING
Regular Panel Decision

Pierre v. Crown Fire Protection Corp.

This case involves appeals by Crown Fire Protection Corp. and PEM All Fire Extinguisher Corp. from a Supreme Court order denying their motions for summary judgment to dismiss a wrongful death complaint asserted against them. The New York City Transit Authority also cross-appealed the denial of its motion for summary judgment seeking to dismiss third-party complaints filed against it. The appellate court dismissed the appeals of Crown and PEM as withdrawn. Furthermore, the order was modified to grant the Transit Authority's cross-motion for summary judgment, thereby dismissing the third-party complaint of Crown Fire Protection Corp. The court determined that Crown's work, which involved delivery and installation of fire extinguisher devices, did not fall under the categories described in General Obligations Law § 5-322.1. Finally, the decision clarified that a recent amendment to Workers' Compensation Law § 11, which limits third-party suits against employers, would not be applied retroactively to pending actions.

Wrongful Death DamagesSummary Judgment DenialThird-Party IndemnificationGeneral Obligations Law ViolationsWorkers' Compensation AmendmentsStatutory Non-RetroactivityContractual IndemnityConstruction vs. InstallationAppellate ModificationDismissal of Appeals
References
3
Case No. MISSING
Regular Panel Decision

Insurance Corp. of New York v. United States Fire Insurance

This case concerns a dispute between a primary insurer, The Insurance Corporation of New York, and an excess insurer, United States Fire Insurance Company (US Fire), regarding the timeliness of claim notice and US Fire's subsequent disclaimer. The motion court initially denied US Fire's cross-motion for summary judgment, deeming its disclaimer untimely. However, the appellate court determined that US Fire received proper notice on April 20, 2006, not March 16, 2006, making its disclaimers, issued eight days later, timely as a matter of law. Consequently, the appellate court reversed the lower court's decision, granting US Fire's cross-motion for summary judgment and dismissing the complaint against it. Additionally, an appeal from a separate order regarding US Fire's request to rescind an insurance policy was dismissed as abandoned.

Insurance PolicyExcess InsurancePrimary InsuranceTimely NoticeDisclaimer of CoverageSummary JudgmentAppellate ReviewClaim NotificationInsurance ContractLiability Insurance
References
9
Case No. MISSING
Regular Panel Decision
Jun 11, 2003

Theodoreu v. Chester Fire District

In this personal injury action, volunteer firefighter James Theodoreu, along with other plaintiffs, appealed a Supreme Court order granting summary judgment to defendants Chester Fire District and Sugar Loaf Engine Company, Inc. The appellate court affirmed the dismissal, holding that the Volunteer Firefighters’ Benefit Law § 19 provides an exclusive remedy for injuries sustained in the line of duty, thereby barring claims against the fire district (as a political subdivision) and the fire company (due to an employer/employee relationship). Additionally, the defendant Witfield Architectural Group's cross-claims against the fire district and fire company were properly dismissed. This dismissal was based on Witfield's failure to demonstrate that the injured plaintiff suffered a "grave injury," a prerequisite for employer liability under Workers’ Compensation Law § 11 for contribution or indemnity.

Volunteer Firefighters Benefit LawExclusive Remedy ProvisionSummary JudgmentPersonal InjuryWorkers Compensation Law Section 11Grave InjuryEmployer LiabilityCross-claims DismissalAppellate AffirmationPolitical Subdivision
References
7
Case No. MISSING
Regular Panel Decision

Home Depot U.S.A., Inc. v. National Fire & Marine Insurance

Home Depot U.S.A., Inc., the general contractor, commenced an action against its subcontractor's insurer, National Fire & Marine Insurance Company, seeking a declaration of coverage. Home Depot, individually and as assignee of Westward Contracting, Inc., sought to compel National Fire to defend and indemnify it as an an additional insured in an underlying action, and to indemnify Westward. The Supreme Court denied Home Depot's discovery motion, granted National Fire summary judgment declaring Home Depot was not an additional insured, and denied National Fire's motion to dismiss Home Depot's claims as Westward's assignee for lack of standing and for summary judgment on the indemnification obligation to Westward. The appellate court affirmed the Supreme Court's order, finding Home Depot was not an additional insured and that the assignment to Home Depot was valid and did not relieve National Fire of its indemnification obligation to Westward.

Insurance CoverageAdditional InsuredIndemnificationSummary JudgmentStandingAssignment of ClaimsSubcontractor LiabilityGeneral ContractorCommercial General Liability PolicyAppellate Review
References
13
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. MISSING
Regular Panel Decision

McClernon v. Beaver Dams Volunteer Fire Department, Inc.

Plaintiff Michael J. McClernon, Sr., a former President of the Beaver Dams Volunteer Fire Department, sued the Department under 42 U.S.C. § 1983, claiming his civil rights were violated when he was suspended and expelled. McClernon alleged retaliation for exercising his freedom of speech after writing a letter to the U.S. Fire Administration, complaining about unequal grant money distribution and alleging misuse of funds by other fire departments. The court found that while his speech touched on public concern, it had a damaging effect on inter-departmental relations and caused disruption within the Beaver Dams Department. Consequently, the court granted summary judgment to the defendant, concluding that the department was justified in expelling McClernon due to the detrimental impact of his speech.

Civil RightsFirst AmendmentFreedom of SpeechRetaliationPublic EmployeeVolunteer Fire DepartmentSummary JudgmentPublic ConcernInter-organizational CooperationWorkplace Disruption
References
20
Case No. 2023 NY Slip Op 06419 [222 AD3d 1139]
Regular Panel Decision
Dec 14, 2023

Matter of Martinez v. Eastchester Fire Dist.

Claimant Tina Martinez, a fire department lieutenant, filed a claim for workers' compensation benefits after contracting COVID-19 at work in December 2020. A Workers' Compensation Law Judge (WCLJ) established the claim, authorized medical treatment, and set her average weekly wage. The employer (Eastchester Fire District and its claims administrator) appealed this decision to the Workers' Compensation Board but failed to serve claimant's new legal representative with the application for review, despite having notice of the substitution of counsel. The Board denied the employer's application for review due to non-compliance with service requirements under 12 NYCRR 300.13 (b). The Appellate Division, Third Department, affirmed the Board's decision, finding no abuse of discretion in denying the employer's application for review based on defective service.

COVID-19 ClaimService RequirementsAppellate ReviewAdministrative AppealDue ProcessLegal RepresentationSubstitution of CounselBoard ReviewWCLJ DecisionEmployer Appeal
References
4
Case No. ADJ7162659
Regular
Nov 07, 2013

,JUAN MORA, vs. ,CHIPOTLE MEXICAN GRILL and ZURICH AMERICAN INSURANCE administered by GALLAGHER BASSETT; CALIFORNIA COMFORT VANS, and AMTRUST NORTH AMERICA, ACE FIRE UNDERWRITERS INSURANCE COMPANY/ACE GROUP, et. al.,

The Workers' Compensation Appeals Board dismissed the applicant's petition for reconsideration because the challenged order was procedural and not a final determination of substantive rights. The WCAB found that an interim order striking a doctor's opinion due to ex parte communication is not subject to reconsideration under Labor Code Section 5900(a). The case was returned to the trial level for clarification of the original order, specifically whether all of the doctor's reports were stricken and if the doctor was dismissed as the Qualified Medical Examiner. This clarification is necessary for proper further proceedings and potential issuance of a replacement QME panel.

WORKERS' COMPENSATION APPEALS BOARDPETITION FOR RECONSIDERATIONORDER STRIKINGEX PARTE COMMUNICATIONQUALIFIED MEDICAL EXAMINER (QME)LABOR CODE SECTION 4062.3FINAL ORDERINTERIM PROCEDURAL ORDERSDISCOVERYEVIDENTIARY MATTERS
References
3
Case No. MISSING
Regular Panel Decision

Yoda, LLC v. National Union Fire Insurance

The Supreme Court, New York County, initially denied defendant National Union Fire's motion to dismiss the complaint and granted plaintiffs' cross motion for summary judgment, declaring the insurer’s disclaimer of coverage ineffective under Insurance Law § 3420 (d). The appellate court unanimously modified this order, denying the cross motion for summary judgment without prejudice to renewal after discovery, citing the lack of conducted discovery. However, the appellate court affirmed the denial of National Union’s motion to dismiss, noting lingering questions regarding the parties' intentions, the terms of the subcontract, and National Union’s delay in disclaiming coverage, which prevent a determination that Yoda and Riverhead were not additional insureds. Additionally, the employers’ liability exclusion in National Union's policy was found unavailing, as liability would be indirect if Yoda and Riverhead are determined to be additional insureds.

Insurance CoverageDisclaimer of CoverageSummary JudgmentMotion to DismissAdditional Insured StatusEmployers' Liability ExclusionAppellate ReviewDiscovery ProceedingsSubcontract TermsLabor Law Litigation
References
5
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