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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
Apr 22, 2001

Epstein v. Kemper Insurance Companies

Plaintiffs, including Joel Epstein, James Glenn, Marina Dushas, Lawrence Miles, and Julia Porper, brought an action against Kemper Insurance Companies, alleging age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA) and the New York City Human Rights Law (NYCHRL). Plaintiffs, who were attorneys in Kemper's New York City litigation department and all over 40 years old, claimed that new Managing Attorney Anne Pope systematically harassed them, leading to lowered performance ratings, terminations, or diminished responsibilities. Defendant moved for summary judgment, to strike portions of plaintiffs' affidavits, and to sever the claims. The court partially granted the motion to strike, finding some submissions inappropriate. However, the court denied defendant's motion for summary judgment, determining that material questions of fact existed regarding whether the defendant's non-discriminatory justifications were a pretext for age discrimination and retaliation. The court also denied the motion to sever, concluding that the plaintiffs' claims arose from the same series of occurrences and shared common questions of law and fact.

Age DiscriminationRetaliationSummary JudgmentMotion to StrikeMotion to SeverADEA ClaimNYCHRL ClaimEmployment LawPrima Facie CasePretext
References
40
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. MISSING
Regular Panel Decision

GuideOne Specialty Insurance v. Admiral Insurance

This case involves an insurance coverage dispute where Weingarten Custom Homes (WCH) contracted with Torah Academy for construction, designating Torah Academy as an additional insured under WCH's liability policy with Admiral Insurance Company. The Admiral policy had lower coverage limits ($1,000,000) than required by the contract ($2,000,000/$5,000,000), with GuideOne Specialty Insurance Company providing secondary and excess coverage to Torah Academy. After a construction worker's injury led to a $1,225,000 settlement, Admiral paid $1,000,000, and GuideOne paid $225,000. GuideOne then sued Admiral to recover its payment, arguing that a letter signed by Admiral's claims superintendent effectively modified Admiral's policy to higher limits. The appellate court reversed the Supreme Court's decision, ruling that the letter did not constitute a valid policy endorsement and that the policy's unambiguous terms could not be altered by extrinsic evidence, thereby granting Admiral's motion to dismiss GuideOne's complaint.

Insurance Policy DisputeContract InterpretationLiability InsuranceAdditional InsuredPolicy LimitsMotion to DismissAppellate ReversalDocumentary EvidenceExtrinsic Evidence RulePolicy Amendment
References
12
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Basch & Kemper Insurance

This case details an appeal concerning an arbitration award for no-fault benefits following an alleged injury. The petitioner sought benefits for lost wages from Kemper Insurance Company. The Special Term confirmed the arbitrator's award, which included benefits exceeding statutory limits and incorrectly calculated interest. On appeal, the court found that the arbitrator exceeded their authority by awarding benefits over $800 per month for an accident preceding the *Kurcsics* decision and by compounding interest from the first day of the period. Consequently, the appellate court reversed the order, vacated the arbitration award, and remitted the matter for recomputation, while affirming the arbitrator's decision not to offset Social Security and unemployment benefits.

Arbitration Award ReviewNo-Fault InsuranceLost Wages BenefitsExceeding Arbitrator AuthorityStatutory Benefit LimitsInterest CalculationSocial Security OffsetUnemployment Insurance OffsetRetroactivity of Legal DecisionsAppellate Reversal
References
6
Case No. CA 10-00545
Regular Panel Decision
Feb 10, 2011

HAHN AUTOMOTIVE WAREHOUSE, INC. v. AMERICAN ZURICH INSURANCE COMPANY

Hahn Automotive Warehouse, Inc. (plaintiff) initiated a breach of contract action against American Zurich Insurance Company and Zurich American Insurance Company (defendants), contending that bills issued under insurance contracts were time-barred. Defendants counterclaimed for damages stemming from plaintiff's alleged breach of these contracts. The Supreme Court partially granted plaintiff's cross-motion, deeming counterclaims for debts arising over six years prior as time-barred. Concurrently, it permitted defendants to utilize a $400,000 letter of credit to satisfy any outstanding debt, including those deemed time-barred. On appeal, the Appellate Division affirmed the use of the letter of credit for time-barred debts, reasoning that the statute of limitations only bars the remedy, not the underlying obligation. The court also affirmed that defendants' counterclaims for debts over six years old were time-barred, as the right to demand payment accrued earlier. Finally, the court modified the order to dismiss plaintiff's second through fourth causes of action. A dissenting opinion argued that the counterclaims were not time-barred, asserting that the cause of action accrued upon demand and refusal of payment, not merely when the right to demand payment existed.

Breach of contractInsurance contractsStatute of limitationsLetter of creditSummary judgmentAppellate reviewContract interpretationTime-barred claimsAccrual of cause of actionRetrospective premiums
References
23
Case No. MISSING
Regular Panel Decision
May 12, 1995

Wausau Underwriters Insurance v. Continental Casualty Co.

This case addresses a dispute between Wausau Underwriters Insurance Company (Wausau) and Continental Casualty Company (Continental), along with The Hartford Insurance Group. Wausau, as the employer's liability carrier for H. Sand & Company, successfully argued that a third-party action by Slattery-Argrett, subrogor of Continental, against H. Sand & Company, constituted an impermissible subrogation claim by an insurer against its own insured. The underlying matter involved a personal injury sustained by an employee of H. Sand & Company. Continental had initially disclaimed coverage for Sand in the third-party action. The Supreme Court granted Wausau's motion for summary judgment, declaring the subrogation action a violation of public policy and awarding Wausau damages. The appellate court affirmed this judgment, distinguishing the present case from prior rulings like *North Star Reins. Corp. v Continental Ins. Co.*, and emphasizing the distinction between claims for indemnification and contribution within insurance policy exclusions.

Subrogation ClaimInsurance Coverage DisputeIndemnification vs. ContributionPublic Policy in InsuranceSummary JudgmentEmployer LiabilityGeneral Liability InsuranceExcess Liability InsuranceConstruction AccidentWorkers' Compensation Carrier
References
9
Case No. 2017 NY Slip Op 04774 [151 AD3d 504]
Regular Panel Decision
Jun 13, 2017

Nationwide Mutual Insurance Co. v. U.S. Underwriters Insurance Co.

This case concerns an insurance coverage dispute where Nationwide Mutual Insurance Company and Artimus Construction Corp., Inc., as subrogees, sought coverage from U.S. Underwriters Insurance Company. The Appellate Division, First Department, affirmed the lower court's decision to dismiss the complaint. The court found that the plaintiffs were collaterally estopped from relitigating insurance coverage issues because these matters had been decided in a prior declaratory judgment action. The majority concluded that Nationwide's subrogor, Artimus, and Artimus's subrogor, Armadillo, had a full and fair opportunity to litigate the coverage issues previously. Furthermore, the court held that the doctrine of res judicata also barred the claims, applying a transactional analysis which dictates that all claims arising from the same transaction that could have been raised in prior litigation are precluded.

Insurance CoverageSubrogationCollateral EstoppelRes JudicataAppellate ReviewDeclaratory JudgmentPersonal Injury ActionEmployer Liability ExclusionLate Notice of ClaimPrivity
References
12
Case No. MISSING
Regular Panel Decision

Fulton Boiler Works, Inc. v. American Motorists Insurance

Fulton Boiler Works, Inc., filed an action against several insurance companies regarding defense and indemnification for thousands of asbestos claims. The court addressed multiple pending motions for summary judgment, focusing on the proper allocation of indemnity costs among the liable parties, Fulton's obligation for uninsured years, the applicability of equitable estoppel against insurers, and Travelers' specific obligations concerning notice of claims and disclaimers. The court ruled that a pro rata allocation of indemnity costs is appropriate, with Fulton liable for periods it was uninsured. Equitable estoppel was deemed inapplicable to bar insurers from seeking contribution, and Travelers was found to have received proper notice for many claims and is barred from disclaiming coverage due to untimely disclaimers. This order, along with a previous one, sets the 'ground rules' for resolving past, pending, and future asbestos claims.

Asbestos LiabilityInsurance Coverage DisputeIndemnity AllocationSummary JudgmentEquitable EstoppelNotice ProvisionsDisclaimer of CoveragePro Rata AllocationInjury-in-factComprehensive General Liability Policy
References
23
Case No. ADJ1857578
Regular
Jun 23, 2009

MIRNA LICEA vs. MINSON CORPORATION, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for PHICO INSURANCE COMPANY in liquidation

This case involves a lien claim by Missirian Orthopedic Medical Group, assigned to KM Financial Services, for medical treatment provided to Mirna Licea. The California Insurance Guarantee Association (CIGA), representing the insolvent insurer Phico Insurance Company, denied the lien based on Insurance Code § 1063.1(c)(9), which excludes claims by assignees. The Workers' Compensation Appeals Board denied reconsideration, affirming that the statute clearly prohibits payment to assignees, including medical providers who have assigned their accounts receivable. The Board relied on *Baxter Healthcare Corp. v. CIGA* for the principle that assigned claims are not "covered claims" under the Guarantee Act.

Workers' Compensation Appeals BoardCalifornia Insurance Guarantee AssociationCIGAPhico Insurance Companyliquidationinsolvent insurerlien claimantassigneecovered claimInsurance Code 1063.1(c)(9)
References
4
Case No. MISSING
Regular Panel Decision

Homestead Village Assoc., L.P. v. Diamond State Insurance

Plaintiff Homestead Village Associates, LP sued its insurers, Diamond State Insurance Company and Chubb Insurance Company of New Jersey, seeking a declaratory judgment regarding their duty to defend and indemnify Homestead in a personal injury action. Homestead also sued its insurance broker, Capacity Coverage Company of New Jersey, for breach of contract and negligence due to late notification of the accident. All parties cross-moved for summary judgment. The court granted Diamond's motion, finding Homestead's 16-month delay in notification unreasonable. Chubb's motion was granted in part and denied in part, as the court found late notice from Homestead, but a factual dispute remained regarding Chubb's timely disclaimer. The court also clarified that Chubb's excess policy would not 'drop down' to cover primary obligations and it had no duty to defend. Homestead's and Capacity's cross-motions for summary judgment were denied, with factual disputes remaining regarding a special relationship and Capacity's knowledge of the accident's seriousness.

Insurance Coverage DisputeDeclaratory JudgmentSummary Judgment MotionLate Notice DefenseExcess Insurance PolicyInsurance Broker LiabilityBreach of ContractNegligence ClaimChoice of LawNew York Insurance Law
References
41
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