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

Case No. ADJ1124123 (BGN 0064929) ADJ3374432 (BGN 0061307)
Regular
Oct 22, 2018

MARY BAKER vs. SWEEETHEART CUPS; CIGA by SEDGWICK CMS for FREMONT INSURANCE in liquidation and PORTEOUS FASTENERS/PACIFIC INDEMNITY COMPANY, CHUBB INSURANCE

The Workers' Compensation Appeals Board granted CIGA's petition for reconsideration, reversing the finding that CIGA remained liable for permanent total disability indemnity and medical treatment for the applicant's industrial injuries. The Board found that because the applicant's injuries resulted in a joint and several award with a solvent insurer, Pacific Indemnity, CIGA has no obligation to pay as "other insurance" was available. The decision clarifies that CIGA is absolved of liability for medical treatment jointly caused by both injuries, but remains liable for treatment solely caused by the September 1979 injury. Pacific Indemnity is now solely responsible for all remaining permanent total disability indemnity and medical treatment costs, adjusting for payments already made by CIGA.

CIGASweetheart CupsPorteous FastenersFremont InsurancePacific IndemnityChubb InsuranceWilkinson doctrinejoint and several liabilitycovered claimsother insurance
References
10
Case No. ADJ3110904 (MON 0294776) ADJ3428603 (MON 0294777)
Regular
Sep 18, 2017

KATHY MAJICK vs. HOGAN & HARTSON, LLP, PACIFIC INDEMNITY, FIREMAN'S FUND

This case involves a contribution dispute between two insurance carriers, Pacific Indemnity and Fireman's Fund, concerning a worker's compensation settlement. Pacific Indemnity sought reconsideration of an arbitrator's award finding it liable for 25% of the settlement, arguing the arbitrator erred by not treating the injuries as a single event and by failing to address statute of limitations issues. The Appeals Board granted reconsideration due to a non-compliant arbitration record, including missing documents and improperly labeled exhibits, as required by *Hamilton v. Lockheed Corp*. The Board rescinded the arbitrator's award and remanded the case for proper record compliance and findings on all outstanding issues.

Workers' Compensation Appeals BoardPetition for ReconsiderationCompromise and ReleaseContribution ProceedingsCumulative InjuryStatute of LimitationsLabor Code section 5412Labor Code section 5500.5Substantial Medical EvidenceArbitration Record
References
2
Case No. 2016 NY Slip Op 01802 [137 AD3d 967]
Regular Panel Decision
Mar 16, 2016

Freundlich v. Pacific Indemnity Co.

Richard Freundlich, the plaintiff, initiated an action against Foa & Son Corporation (an insurance broker), alleging negligent failure to advise on and procure workers' compensation insurance after informing them he hired workers at his home. Foa & Son Corporation moved to dismiss the complaint under CPLR 3211 (a) (7), but the Supreme Court, Suffolk County, denied this motion. Foa & Son Corporation subsequently appealed the denial. The Appellate Division, Second Department, affirmed the Supreme Court's order, concluding that Freundlich had sufficiently alleged a 'special relationship' with Foa, which could impose a duty to advise beyond the standard common-law duties of an insurance broker. Thus, the complaint against Foa was deemed viable.

Insurance Broker NegligenceWorkers' Compensation InsuranceDuty to AdviseSpecial RelationshipMotion to DismissAppellate ReviewInsurance CoverageSuffolk County Supreme CourtSecond Department Appellate DivisionCPLR 3211 (a) (7)
References
8
Case No. MISSING
Regular Panel Decision

Alfonso v. Pacific Classon Realty, LLC

The plaintiff was injured while employed by D.S. Imports on premises leased by Delmar Sales, Inc. and purchased by Pacific Classen Realty, LLC the day after the accident. The appellate court found that the motion for summary judgment dismissing the complaint against Pacific Classen Realty, LLC should have been granted because PCR did not own the premises at the time of the accident. However, the court affirmed the denial of summary judgment for Delmar Sales, Inc., ruling that it failed to prove the plaintiff was a special employee or that it was an alter ego of D.S. Imports. Additionally, the court affirmed the denial of summary judgment for Delmar Sales regarding Labor Law §§ 240 (1) and 241 (6) claims, as it failed to establish it was not an owner or agent.

Summary JudgmentWorkers' Compensation LawLabor LawPremises LiabilitySpecial Employee DoctrineOwner LiabilityAppellate DecisionReal Estate OwnershipLessor LiabilityLessee Liability
References
21
Case No. MISSING
Regular Panel Decision

MBB Realty Ltd. Partnership v. Great Atlantic & Pacific Tea Co. (In re Great Atlantic & Pacific Tea Co.)

This is an appeal from a Bankruptcy Court order denying summary judgment for the appellant, MBB Realty Limited Partnership, and granting it for the appellee, The Great Atlantic & Pacific Tea Company, Inc. The dispute centered on a commercial lease, which was amended to include percentage rent and later involved A&P's plan to further downsize, leading to a contested letter agreement regarding new percentage rent terms and property alterations. The Bankruptcy Court found the letter agreement void for lack of consideration, despite A&P's subsequent payments, a decision MBB appealed. The District Court affirmed, concluding that MBB's alleged consent to exterior changes or store downsizing did not constitute valid consideration, as these actions were either not explicitly agreed upon or already permissible under the existing lease terms, thus rendering the agreement unenforceable. Consequently, arguments about ratification or the satisfaction of conditions precedent were deemed irrelevant for a void contract.

Contract LawConsiderationParol Evidence RuleSummary JudgmentBankruptcy AppealCommercial LeasePercentage RentLease AmendmentRatificationGood Faith and Fair Dealing
References
64
Case No. 15 Civ. 3975 (NRB)
Regular Panel Decision

National Indemnity Co. v. IRB Brasil Resseguros S.A.

This case involves a dispute between National Indemnity Company (NICO) and IRB Brasil Resseguros S.A. (IRB) over reinsurance obligations. Following contentious arbitrations, a tribunal issued three awards favoring NICO. NICO petitioned the U.S. District Court to confirm these awards, while IRB cross-petitioned for vacatur, citing alleged 'evident partiality' of the neutral umpire, Daniel Schmidt, due to his concurrent service in an unrelated arbitration involving a NICO affiliate (Equitas) and challenging the tribunal's jurisdiction. The court found Schmidt's disclosures reasonable and his concurrent assignments insufficient to demonstrate partiality. It also affirmed the arbitration panel's jurisdiction over the disputed 2008 premium and associated fees. Consequently, the court granted NICO's petition to confirm the awards and denied IRB's cross-petition to vacate them.

ArbitrationReinsurance DisputeEvident PartialityUmpire DisclosureVacatur of Arbitration AwardConfirmation of Arbitration AwardFederal Arbitration ActNew York ConventionArbitration ClauseContract Interpretation
References
42
Case No. MISSING
Regular Panel Decision
Jun 30, 1992

National General Insurance v. Hartford Accident & Indemnity Co.

This case concerns a declaratory judgment action regarding insurance coverage following a fatal airplane crash. Warren Geddes, president of American Investor Services, Inc. (AIS), was piloting a plane carrying Gary Conway, an AIS employee, when it crashed, killing both. National General Insurance Company, insurer of the plane owner, sought for Hartford Accident and Indemnity Company, AIS's workers' compensation insurer, to defend and indemnify AIS and Geddes' Estate in a wrongful death action. Hartford denied coverage for Geddes' Estate, arguing he was not a named or additional insured under their policy. The court modified the initial judgment, declaring that Hartford has no duty to defend or indemnify the Estate of Geddes, while otherwise affirming the judgment.

Insurance CoverageDeclaratory JudgmentWrongful DeathDuty to DefendDuty to IndemnifyNamed InsuredAdditional InsuredWorkers' Compensation PolicyAirplane CrashEstate Liability
References
5
Case No. MISSING
Regular Panel Decision

Hartford Accident & Indemnity Co. v. Commercial Union Insurance

This case involves a dispute between two insurance companies, Hartford Accident and Indemnity Company (excess insurer) and Commercial Union Insurance Company (primary insurer), concerning liability for an injury claim. Michael Jutt, an employee of Minuteman Press International, Inc., was injured while on a Minuteman-owned boat. Commercial Union, the primary insurer, denied coverage and refused to defend Minuteman, leading Hartford, the excess insurer, to provide defense and settle Jutt's claim for $135,000. Hartford subsequently sued Commercial Union for breach of fiduciary duty. The District Court affirmed Hartford's standing to sue, recognizing a direct fiduciary duty owed by a primary insurer to an excess insurer, and found that the "paid employees" exclusion in Commercial Union's policy was ambiguous. Consequently, the Court ruled in favor of Hartford, ordering Commercial Union to pay $135,000 plus interest.

Insurance LawExcess InsurancePrimary InsuranceFiduciary DutyEquitable SubrogationPolicy ExclusionAmbiguous Contract TermDeclaratory Judgment ActionStanding to SueMarine Insurance
References
5
Case No. MISSING
Regular Panel Decision

Hartford Accident & Indemnity Co. v. Coastal Dry Dock & Repair Corp.

This case concerns an appeal by Hartford Accident and Indemnity Co. (insurer) against Coastal Dry Dock and Repair Corp. (insured) regarding unpaid retrospective premiums on a workers' compensation policy. The insurer sought to recover additional premiums calculated based on the insured's loss record, as stipulated by a 'Retrospective Premium Endorsement.' The defendant raised multiple defenses and counterclaims, alleging improper calculations, misrepresentation, and mishandling of claims. The Supreme Court initially denied the plaintiff's motion for summary judgment. However, the Appellate Division reversed this decision, ruling that the defendant's opposition, primarily an attorney's affidavit lacking personal knowledge, was insufficient to raise a genuine issue of material fact. The court found the defendant's defenses and counterclaims legally insufficient, affirming the insurer's contractual right to negotiate and settle claims.

Workers' Compensation PolicyRetrospective PremiumSummary JudgmentContract DisputeInsurance LawAppellate ReviewAffidavit SufficiencyEvidentiary FactsClaims SettlementPolicy Interpretation
References
6
Case No. MISSING
Regular Panel Decision
May 18, 2017

TransAtlantic Lines LLC v. American Steamship Owners Mutual Protection & Indemnity Ass'n

TransAtlantic Lines LLC sought to overturn an adverse insurance coverage decision by the Board of Directors of American Steamship Owners Mutual Protection and Indemnity Association, following a shipping accident. TransAtlantic argued for a de novo review, asserting the alternative dispute resolution (ADR) process was fundamentally unfair due to the Board's inherent financial bias and violated public policy. The district court, however, applied the contractually agreed-upon "arbitrary and capricious" standard of review. The court rejected TransAtlantic's claims of bias and public policy violations, finding that TransAtlantic had voluntarily consented to the ADR framework. Consequently, the court upheld the Board's decision to deny coverage for attorney's fees, U.S. Government cargo losses, and perishable cargo expenses, concluding that these denials were not arbitrary or capricious.

Alternative Dispute Resolution (ADR)Insurance Coverage DisputeSummary JudgmentArbitrary and Capricious StandardContract LawMarine InsuranceJudicial Review of ArbitrationWaiver of RightsPublic Policy ExceptionAttorney Ethics
References
24
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