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

Case No. 16 NY3d 707
Regular Panel Decision
Jan 01, 2011

Mount Vernon City School District v. Nova Casualty Co.

Mount Vernon City School District (School District) initiated a breach of contract action against Nova Casualty Company (Nova), a compensated surety, and DJH Mechanical Associates, Inc. (DJH), the contractor, for failure to complete HVAC work. DJH defaulted, and Nova disclaimed liability, asserting that the School District improperly diverted $214,000 of contract funds to the Department of Labor for an unrelated debt of DJH, violating the Lien Law and increasing Nova's risk under the performance bond. The lower courts and the Court of Appeals affirmed that Nova was not discharged from its surety obligation because it had not completed performance and thus lacked subrogation rights as a Lien Law trust beneficiary. Furthermore, the payment to DOL, representing earned funds for DJH's past performance, did not materially alter the contract or impair Nova's risk. The School District's request for litigation attorneys' fees was denied, as the contract and bond language did not "unmistakably clearly" obligate Nova for such costs, only for those related to project completion.

Performance bondSurety dischargeBreach of contractLien Law Article 3-ATrust fund diversionContract paymentsAttorneys' fees litigationSubrogation rightsMaterial alteration of contractCompensated surety
References
15
Case No. ADJ4137919 (LAO 0855341) ADJ3018408 (LAO 0855344)
Regular
Dec 15, 2009

Enrique Madrigal vs. KAVLICO CORP, NOVA PRO RISK SOLUTIONS

Lien claimants' Petition for Reconsideration is granted; the Orders of Reimbursement are affirmed, but amended to delete the award of interest.

Petition for ReconsiderationOrder of ReimbursementLien ClaimantsPetition for ReimbursementAmounts Paid in ErrorInterest AwardWCJ's OrderStatutory BasisAppeals BoardDecision After Reconsideration
References
0
Case No. ADJ313427 (ANA 0407708)
Regular
Apr 21, 2010

THOMAS EVERETT vs. TAMPA BAY BUCCANEERS, NOVA PRO RISK SOLUTIONS, formerly WARD NORTH AMERICAN

This case involves an applicant who sustained a cumulative trauma injury as a professional football player from 1994-1995, resulting in a 73.1% permanent disability award. The defendant sought reconsideration, arguing the 2005 Permanent Disability Rating Schedule should apply, but the Appeals Board granted reconsideration to determine the correct schedule. The Board found the defendant was not required to provide a section 4061 notice in 1995. The matter is returned to the trial level to assess if pre-2005 medical reports indicated permanent disability, which would exempt the case from the 2005 schedule.

Workers' Compensation Appeals BoardPermanent Disability Rating ScheduleLabor Code Section 4660(d)Cumulative Trauma Injury2005 Rating ScheduleQualified Medical EvaluatorLabor Code Section 4061 NoticeMedical-Legal ReportTreating Physician ReportPermanent and Stationary Status
References
7
Case No. MISSING
Regular Panel Decision

Durant v. A.C.S. State & Local Solutions Inc.

Plaintiff Sharon Durant filed a lawsuit against A.C.S. State and Local Solutions, Inc. (ACS) alleging sexual harassment and a hostile work environment. Durant, a customer service representative, claimed she received two sexually explicit notes from a co-worker, Terri Simeon. Upon reporting the second note, ACS swiftly responded by moving Durant's workstation and disciplining Simeon, which ended the direct harassment. Despite these actions, Durant resigned, asserting constructive discharge because Simeon was not fired. The court granted summary judgment in favor of ACS, ruling that there was no quid pro quo harassment, the environment was not sufficiently hostile, no constructive discharge occurred, and her state law claims and intentional infliction of emotional distress claim also failed or were time-barred.

Sexual HarassmentHostile Work EnvironmentSummary JudgmentQuid Pro QuoConstructive DischargeEmployer LiabilityCorrective ActionCo-worker MisconductEmployment DiscriminationTitle VII
References
21
Case No. ADJ7109517
Regular
May 05, 2011

DWAYNE RUDD vs. OAKLAND RAIDERS AND ACE/USA, Administered by ESIS, TAMPA BAY BUCCANEERS, Permissibly Self-Insured, Administered by NOVA PRO RISK SOLUTIONS

The Workers' Compensation Appeals Board granted reconsideration to reverse a prior decision and found applicant Dwayne Rudd's claim barred by the statute of limitations. Despite the WCJ finding defendants estopped to assert the defense due to notice violations, the Board determined Rudd possessed actual knowledge of his workers' compensation rights. This knowledge was evidenced by his signing of a DWC-1 form and retaining multiple law firms to pursue prior, dismissed claims for the same cumulative trauma injury. Therefore, the Board concluded there was no prejudice from the lack of notice, and the claim was untimely.

Workers' Compensation Appeals BoardDwayne RuddOakland RaidersACE/USATampa Bay BuccaneersNova Pro Risk Solutionsindustrial cumulative traumaprofessional football playerstatute of limitationsestoppel
References
4
Case No. MISSING
Regular Panel Decision

Certified Multi-media Solutions, Ltd. v. Preferred Contractors Insurance Co. Risk Retention Group, LLC

This case involves a dispute over insurance coverage between Certified MultiMedia Solutions, LTD (Plaintiff) and Preferred Contractors Insurance Company Risk Retention Group, LLC (Defendant) regarding a commercial general liability policy. Plaintiff sought a declaratory judgment that the Defendant is obligated to defend and indemnify it in a third-party action related to a worker's injury by Anthony Balzano. The core dispute centered on the interpretation of Endorsement 23 of the policy, which the Defendant argued limited coverage to $10,000 for bodily injury claims. The Court, however, adopted the Plaintiff's interpretation, finding that the $10,000 limit only applied if the employee sustained a 'grave injury' under New York State Workers’ Compensation Law, which was not the case here. Consequently, the Defendant's motion to dismiss was denied, and the Plaintiff's motion for summary judgment was granted, entitling the Plaintiff to coverage up to the $1,000,000 policy limit.

Insurance Coverage DisputeDeclaratory JudgmentCommercial General Liability PolicyContractual IndemnificationWorkers' Compensation LawGrave Injury DefinitionPolicy InterpretationSummary JudgmentFederal Rules of Civil ProcedureThird-Party Action
References
38
Case No. MISSING
Regular Panel Decision

In re La Nova Pizzeria, Inc.

La Nova Pizzeria, Inc. appealed a decision from the Unemployment Insurance Appeal Board, which had assessed them for additional unemployment insurance contributions related to their delivery drivers. La Nova contended that the drivers were not employees. The court found that the Board’s decision lacked substantial evidence to prove an employment relationship, noting that drivers used their own vehicles, paid for food, and could work for other restaurants, indicating a lack of control by La Nova. Consequently, the court reversed the Board's decision and remitted the matter for further proceedings.

Unemployment InsuranceEmployment RelationshipIndependent ContractorDelivery DriversControl TestSubstantial EvidenceAppeal BoardReversalRemittalErie County
References
2
Case No. ADJ7019654
Regular
Feb 06, 2013

KEENAN MCCARDELL vs. CHARGERS FOOTBALL CO., LLC dba SAN DIEGO CHARGERS, GREAT DIVIDE INSURANCE CO., administered by BERKLEY SPECIALTY UNDERWRITING MANAGERS, LLC, JACKSONVILLE JAGUARS, TAMPA BAY BUCCANEERS, ACE/PACIFIC EMPLOYERS INSURANCE administered by NOVA PRO RISK SOLUTIONS, CLEVELAND BROWNS, WASHINGTON REDSKINS, ACE, administered by ESIS, HOUSTON TEXANS, RELIANCE AND LEGION INSURANCE, in liquidation by CIGA, TRAVELERS

This case concerns Keenan McCardell's workers' compensation claim for injuries sustained as a professional football player from January 2007 to January 2008. The primary issue on reconsideration was whether the claim was barred by the statute of limitations. The Board affirmed the original award, finding that McCardell did not sustain a disabling injury until he sought line-of-duty benefits in July 2009, which was less than a year before filing his workers' compensation claim. Therefore, the claim was deemed timely filed.

Workers' Compensation Appeals BoardKeenan McCardellChargers Football Co.LLCGreat Divide Insurance Co.occupational injuryprofessional athletecumulative injurystatute of limitationsLabor Code section 5405
References
0
Case No. Docket # 7
Regular Panel Decision

Empire Enterprises JKB, Inc. v. Union City Contractors, Inc.

This case involves a breach of contract claim by Empire Enterprises JKB, Inc. against Union City Contractors, Inc. for unpaid debris removal services, and a Miller Act claim against Union City's sureties, Nova Casualty Company and Nova American Groups, Inc. After a bench trial in January 2008, Union City filed for bankruptcy, leading to an automatic stay on claims against them. The court, however, proceeded with Empire's Miller Act claim against Nova. The primary dispute concerned the quantity of debris removed, with Empire claiming 11,470 cubic yards. The court found Empire's evidence credible and rejected Nova's fraud defense, ultimately granting judgment in favor of Empire against Nova for $84,653.63, plus prejudgment interest.

Miller Act claimPayment bondBreach of contractSurety liabilityFederal public works projectDebris removalCubic yardage disputePrejudgment interestAttorney's fees deniedFraud affirmative defense
References
29
Case No. 2023 NY Slip Op 01291 [214 AD3d 796]
Regular Panel Decision
Mar 15, 2023

Matter of Delessio v. York Risk Servs. Group, Inc.

The petitioner, Vincent J. Delessio, appealed an order denying his petition for judicial approval of a personal injury settlement nunc pro tunc under Workers' Compensation Law § 29 (5). The Supreme Court dismissed the proceeding, finding that the delay in seeking approval was attributable to the petitioner's fault or neglect. The Appellate Division, Second Department, affirmed this decision. The court emphasized that a party seeking nunc pro tunc approval must demonstrate the settlement's reasonableness, the absence of fault or neglect for the delay, and no prejudice to the opposing party. The Appellate Division concluded that the Supreme Court providently exercised its discretion given the petitioner's delay.

Workers' Compensation LawPersonal InjurySettlement ApprovalNunc Pro TuncJudicial DiscretionAppellate ReviewDelayFault or NeglectInsurance Carrier LienThird-Party Action
References
8
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