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

Case No. ADJ7432904
Regular
Sep 24, 2012

NEDA MOTAVAKEL vs. FANTASTIC SAM'S, TOWER SELECT INSURANCE CO., ILLINOIS MIDWEST INSURANCE AGENCY, LLP, STAR INSURANCE CO., ILLINOIS MIDWEST INSURANCE AGENCY, LLP, ENDURANCE WORKERS' COMPENSATION, SOUTHERN INSURANCE CO., FIRSTCOMP OMAHA

This case involves an appeal by Star and Tower Insurance Companies regarding a workers' compensation award. The primary issue is the applicant's average weekly earnings, specifically the inclusion of tip income, which was not adequately substantiated by documentary evidence. The Appeals Board found the initial decision lacked substantial evidence regarding earnings and rescinded the award. The matter is remanded for further proceedings to properly develop the evidentiary record on earnings and insurance coverage dates before a new decision is issued.

Workers' Compensation Appeals BoardNeda MotavakelFantastic Sam'sTower Select Insurance CompanyStar Insurance CompanyIllinois Midwest Insurance AgencyLLEndurance Workers' CompensationSouthern Insurance CompanyFirstComp Omaha
References
6
Case No. 2015 NY Slip Op 06582 [131 AD3d 598]
Regular Panel Decision
Aug 19, 2015

Tully Construction Co. v. Illinois National Insurance

Tully Construction Co., Inc. (Tully) and Zurich American Insurance Company (Zurich) appealed an order and judgment of the Supreme Court, Queens County. The Supreme Court denied their separate motions for summary judgment on the complaint and granted Illinois National Insurance Company's (Illinois) cross-motion for summary judgment. The dispute centered on Illinois's obligation to indemnify Tully under a commercial umbrella liability insurance policy, which was contingent upon the exhaustion of underlying insurance. The Supreme Court found that Zurich's Workers Compensation and Employers Liability policy had an unlimited liability provision. As a result, the excess coverage of Illinois's umbrella policy was never triggered. The Appellate Division affirmed the order and judgment, declaring that Illinois had no obligation to indemnify Tully and that Zurich must reimburse Illinois for $2,500,000.

Insurance coverage disputeUmbrella liability insuranceWorkers' Compensation policyEmployers Liability policySummary judgment motionIndemnification obligationPolicy exhaustionExcess coverage triggerPrimary insurer vs. excess insurerAppellate Division Second Department
References
7
Case No. 2017 NY Slip Op 08926 [156 AD3d 1192]
Regular Panel Decision
Dec 21, 2017

Cromer v. Rosenzweig Insurance Agency Inc.

Plaintiff, Bradley E. Cromer, as assignee, sued Rosenzweig Insurance Agency Inc. and other defendants for negligence, breach of contract, and fraud, alleging failure to procure appropriate insurance coverage for his assignors, Allen Skriloff and SOS 1031 Properties 112, LLC. The lawsuit stemmed from a workplace injury where the assignors' insurance carrier disclaimed coverage due to an employee exclusion. The Supreme Court granted summary judgment to the insurance agency, finding the assignors were presumed to know their policy's contents. The Appellate Division affirmed this decision, concluding that plaintiff failed to demonstrate a specific request for the excluded coverage or establish a 'special relationship' with the broker that would impose a higher duty of advisement beyond the written notice provided.

Insurance Broker LiabilityNegligenceBreach of ContractFraudMaterial MisrepresentationSummary JudgmentAppellate ReviewSpecial RelationshipDuty to AdviseCommercial General Liability
References
11
Case No. 2017 NY Slip Op 07772 [155 AD3d 431]
Regular Panel Decision
Nov 09, 2017

Illinois National Insurance Co. v. Schumann

The Appellate Division, First Department, affirmed a judgment from the Supreme Court, New York County, which granted summary judgment to Illinois National Insurance Company (plaintiff) for $64,000 against Robert Schumann et al. (defendants). The lower court's decision was based on the defendants' failure to prove an accord and satisfaction regarding a Workers' Compensation Law § 29 lien, as there was no bona fide dispute concerning the amount due. Additionally, the motion court providently exercised its discretion in sanctioning defendants for noncompliance with discovery orders, which made the accord and satisfaction unavailable as an affirmative defense. The judgment was unanimously affirmed.

Workers' Compensation LawLienSummary JudgmentAccord and SatisfactionDiscovery OrdersSanctionsAppellate ReviewCivil ProcedureAffirmative DefenseInsurance Claim
References
2
Case No. MISSING
Regular Panel Decision

Liberty USA Corp. v. Buyer's Choice Insurance Agency LLC

Liberty USA Corporation sued Buyer's Choice Insurance Agency LLC and Terry S. Jacobs for $183,333.00 due on a Promissory Note. Defendants, after removing the case to federal court in the Southern District of New York, moved to dismiss or transfer venue. The central issue was conflicting forum selection clauses in the Promissory Note (New York) and an Asset Purchase Agreement (Ohio), both part of the same transaction. Applying contract interpretation principles from both New York and Ohio law, the court determined the Asset Purchase Agreement's Ohio forum selection clause superseded the Promissory Note's clause. Lacking statutory authority to transfer to a state court, the federal court granted the Defendants' motion to dismiss without prejudice.

Forum Selection ClausePromissory NoteAsset Purchase AgreementSubject Matter JurisdictionPersonal JurisdictionTransfer of VenueDiversity JurisdictionContract InterpretationOhio LawNew York Law
References
26
Case No. MISSING
Regular Panel Decision

Nationwide Insurance v. Empire Insurance Group

This case concerns a dispute over insurance coverage. Marcos Ramirez was injured while working for Fortuna Construction, Inc. at premises owned by 11194 Owners Corp. Fortuna had subcontracted work from Total Structural Concepts, Inc. and agreed to add Total Structural as an additional insured on its general liability policy with Empire Insurance Group and Allcity Insurance Company. Ramirez sued 11194 Owners Corp. and Total Structural. Total Structural then commenced a third-party action against Fortuna. Nationwide Insurance Company, as Total Structural's insurer and subrogee, initiated a declaratory judgment action against Empire and Allcity after discovering Total Structural was an additional insured on their policy, demanding coverage for the Ramirez action. The Supreme Court granted Nationwide's motion for summary judgment, but the appellate court reversed, finding that Total Structural failed to provide timely notice of the Ramirez action to Empire and Allcity as required by the policy. The court emphasized that timely notice is a condition precedent to recovery and that lack of diligent effort to ascertain coverage vitiates the policy. Consequently, the appellate court granted Empire and Allcity's cross-motion, declaring they are not obligated to defend or indemnify Nationwide/Total Structural.

Insurance CoverageTimely NoticeCondition PrecedentDeclaratory JudgmentAdditional InsuredSubrogationSummary JudgmentBreach of ContractPersonal InjuryGeneral Liability Policy
References
8
Case No. 2017 NY Slip Op 07909 [155 AD3d 1208]
Regular Panel Decision
Nov 09, 2017

NYAHSA Services, Inc., Self-Insurance Trust v. People Care Inc.

Plaintiff, a self-insured trust, commenced a collection action against defendant, a former member, for unpaid assessments related to workers' compensation claims. Defendant counterclaimed and filed a third-party action against Cool Insuring Agency, the trust's administrators, alleging mismanagement. During discovery, a dispute arose over a report commissioned by defendant's counsel from a consultant, which Cool and plaintiff sought to compel. Defendant asserted attorney-client privilege, attorney work product, and material prepared in anticipation of litigation. The Supreme Court partially granted the motions to compel, a decision largely affirmed by the Appellate Division, Third Department, with a modification regarding a specific email exchange found to be protected attorney work product.

Discovery DisputeAttorney-Client PrivilegeAttorney Work ProductMaterial Prepared for LitigationSelf-Insurance TrustWorkers' Compensation BenefitsBreach of ContractUnjust EnrichmentThird-Party ActionClaims Administration
References
20
Case No. ADJ8620205, ADJ8967412
Regular
Dec 10, 2015

SONIA RODRIGUEZ vs. FRESH BAKED LOVIN OVEN, ILLINOIS MIDWEST INSURANCE AGENCY, LLC, TOWER SELECT INSURANCE COMPANY, PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY

The Workers' Compensation Appeals Board granted removal, rescinding a WCJ's order taking the case off calendar. The Board found that key parties, including the applicant's legal representation (Bradford & Barthel, LLP) and their insurer (PMAIC), were not properly served with notices of hearings. This lack of notice prevented them from participating and asserting their rights, violating due process. The matter is remanded for a properly noticed lien conference and subsequent lien trial.

Workers' Compensation Appeals BoardPetition for RemovalWCJMinute OrderLien ConferenceLien TrialCompromise and ReleaseNotice of RepresentationDue ProcessService
References
4
Case No. MISSING
Regular Panel Decision

Transcontinental Insurance v. State Insurance Fund

This case involves a dispute between two insurers, Transcontinental Insurance Company (plaintiff) and State Insurance Fund (defendant), regarding their contribution to the defense and settlement of an underlying personal injury action. Transcontinental, which insured the contractor Master, sought a declaration that State Insurance Fund, Master's workers' compensation insurer, should contribute as a co-insurer for expenses incurred defending and settling the action on behalf of NYPA. The Supreme Court dismissed the complaint, applying the antisubrogation rule. The Appellate Division modified the judgment, vacating the dismissal but affirming the application of the antisubrogation rule, declaring that State Insurance Fund is not obligated to reimburse Transcontinental for the expenses.

Insurance DisputeAntisubrogation RuleDeclaratory JudgmentCommercial General Liability PolicyWorkers' Compensation InsuranceIndemnificationCo-insurancePersonal Injury ActionAppellate ReviewContractual Obligation
References
5
Case No. MISSING
Regular Panel Decision

Arbitration Between Westchester Fire Insurance v. Massamont Insurance Agency, Inc.

Petitioners, including Westchester Fire Insurance Company, sought to confirm an arbitration award of $2,600,000 against Massamont Insurance Agency, Inc. The dispute arose from alleged breaches of an Agency Agreement. Massamont did not oppose confirmation but contested the prejudgment interest rate and attorneys' fees. The District Court confirmed the award, granted prejudgment interest at Pennsylvania's six percent rate, denied attorneys' fees due to lack of bad faith, and granted costs to petitioners.

Arbitration AwardContract BreachPrejudgment InterestAttorneys FeesCostsFederal Arbitration ActPennsylvania LawInsurance DisputeDiversity JurisdictionJudicial Review
References
15
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