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

Case No. 2014 NY Slip Op 08848 [123 AD3d 933]
Regular Panel Decision
Dec 17, 2014

Public Service Mutual Insurance v. Fiduciary Insurance Co. of America

This case involves an appeal by Fiduciary Insurance Company of America (appellant) from an order and judgment confirming an arbitration award in favor of Public Service Mutual Insurance Company (respondent), as subrogee of Peter Daversa. The Supreme Court, Queens County, granted the petition to confirm and denied Fiduciary's cross-petition to vacate the arbitration award. The Appellate Division, Second Department, dismissed the appeal from the intermediate order, finding it merged into the judgment, and affirmed the judgment. The court applied closer judicial scrutiny to the compulsory arbitration award, determining that the arbitrator's decision had ample evidentiary support and was not arbitrary or capricious. The appellant's contentions regarding proximate cause, burden of proof, and prejudgment interest were found to be without merit.

Arbitration Award ConfirmationInsurance SubrogationAppellate ReviewJudicial ScrutinyEvidentiary SupportArbitrator's DeterminationProximate CausationBurden of ProofPrejudgment InterestCPLR Article 75 Proceeding
References
8
Case No. MISSING
Regular Panel Decision
Jul 05, 2006

Wilson v. Sirius America Insurance

Stephen Wilson, a foreman for a plumbing subcontractor, was injured at a construction site and, along with his wife, sued the general contractor, K.J. Gold, LLC, for Labor Law violations. K.J. Gold's insurer, Sirius America Insurance Company, disclaimed coverage based on an exclusion requiring a prior written indemnification contract between K.J. Gold and the subcontractor, which was absent. After K.J. Gold defaulted in the underlying action, the Wilsons commenced a new action against Sirius America to recover the unsatisfied judgment. The Supreme Court initially granted summary judgment to the Wilsons, deeming the exclusion void under General Obligations Law § 5-322.1. However, the appellate court reversed, holding that the insurance exclusion itself did not violate General Obligations Law § 5-322.1, and since K.J. Gold never met the policy's condition of obtaining a written indemnification agreement, Sirius America was entitled to summary judgment dismissing the complaint.

Insurance Coverage DisputeIndemnification AgreementSummary Judgment AppealConstruction AccidentLabor Law ViolationsPolicy ExclusionGeneral Obligations LawContract InterpretationAppellate ReversalThird-Party Action
References
3
Case No. CA 13-00513
Regular Panel Decision
May 09, 2014

DRYDEN MUTUAL INSURANCE COMPANY v. GOESSL, STANLEY

Plaintiff Dryden Mutual Insurance Company initiated an action seeking a declaration that it was not obligated to defend or indemnify Stanley Goessl in an underlying tort action, which arose from a fire during plumbing work. Defendants AP Daino & Plumbing, Inc. and its insurer, The Main Street America Group, also denied coverage for Goessl. The Supreme Court initially ruled in favor of Dryden Mutual and against Main Street America Group. However, the Appellate Division reversed this judgment, declaring that Dryden Mutual is obligated to defend and indemnify Goessl and reimburse his attorney's fees, based on his status as a sole proprietor insured by them. Conversely, The Main Street America Group was found to have no duty to defend or indemnify Goessl, as he was deemed an independent contractor, not an employee of AP Daino, according to their policy's plain meaning and their business arrangement. Sconiers, J., dissented, arguing that the trial court's finding of Goessl as an employee should have been upheld.

Insurance coverage disputeBusiness liabilityIndependent contractor classificationEmployee statusDuty to indemnifyDuty to defendSubcontracting agreementDeclaratory judgment actionAppellate review of judgmentContract interpretation
References
22
Case No. ADJ3388315 (SBR 0294441) ADJ683842 (SBR 0340933)
Regular
Jul 22, 2014

Marvin Camacho vs. Western Metal Lathe, Sompo Japan Insurance Company, Broadspire, Remedy Temp, Reliance National, California Insurance Guarantee Association, Williams Furnace Company, St. Paul Fire & Marine, Kimco Staffing, Liberty Mutual Insurance

The Workers' Compensation Appeals Board denied Williams Furnace Company's petition for reconsideration and granted Sompo Japan Insurance Company's petition. The Board affirmed the original award for Marvin Camacho's neck and back injuries sustained while employed by Remedy Temp and Western Metal Lathe, as well as prior injuries to his cervical and lumbar spine from Williams Furnace Company. Issues of temporary total disability, additional attorney's fees, and other matters were deferred for further development at the trial level. Liberty Mutual Insurance, carrier for Kimco Staffing, was dismissed from the case.

WORKERS' COMPENSATION APPEALS BOARDWESTERN METAL LATHESOMPO JAPAN INSURANCE COMPANYBROADSPIREREMEDY TEMPRELIANCE NATIONALCALIFORNIA INSURANCE GUARANTEE ASSOCIATIONWILLIAMS FURNACE COMPANYST. PAUL FIRE & MARINEKIMCO STAFFING
References
0
Case No. MISSING
Regular Panel Decision
Sep 05, 2003

Di Roma v. Mutual of America Life Insurance

This case involves a plaintiff suing Mutual of America Life Insurance Company, Inc., and its general contractor, Turner Construction Company, for damages sustained during building renovations. A wall collapsed from Mutual's building onto the plaintiff's adjacent property, causing damage to the roof. The defendants failed to implement required protective measures, and subsequent work further exacerbated the damage. The trial court initially refused to instruct the jury on res ipsa loquitur, leading to a verdict in favor of the defendants. The appellate court reversed this decision, finding that the elements for a res ipsa loquitur charge were met, and remanded the case for a new trial.

Res ipsa loquiturNegligenceBuilding collapseConstruction damageProperty damageTrial court errorAppellate reviewJury chargeExclusive controlRemand
References
4
Case No. MISSING
Regular Panel Decision
Feb 21, 2008

Indemnity Insurance Co. of North America v. St. Paul Mercury Insurance

In this insurance coverage dispute, IICNA, Romano's excess insurer, sought reimbursement from St. Paul (Yonkers' insurer) and Yonkers (general contractor) for a $2 million payment made to settle an underlying personal injury suit involving Eugene Flood. Flood, a Yonkers employee, was injured due to a cable left by subcontractor Romano. IICNA settled the underlying action without St. Paul's consent, believing St. Paul's policy was primary and Yonkers was contractually obligated to indemnify. The court denied IICNA's claims, finding St. Paul was not bound by the non-consented settlement and had properly tendered defense to Romano. Furthermore, IICNA's subrogation claim against Yonkers was barred by the antisubrogation rule, as Yonkers was an additional insured under IICNA's policy.

Insurance CoverageReimbursementSubrogationAntisubrogation RuleAdditional InsuredIndemnification AgreementLabor LawSummary JudgmentAppellate ReviewSettlement Consent
References
8
Case No. MISSING
Regular Panel Decision

Insurance Co. of North America v. Norris

This nonjury trial concerns an automobile accident where claimants Gladys M. Norris and her daughter Lisa were injured by a stolen Cadillac owned by Arc Leasing Corp. and insured by American Transit Insurance Company. The core issue was whether American Transit properly disclaimed coverage given its failure to provide written notice. The court, citing Insurance Law § 167(8) and precedent like Zappone v Home Ins. Co., determined that a denial of coverage based on lack of permissive use (due to a stolen vehicle) is akin to a policy exclusion, thus requiring written notice. American Transit's failure to provide such notice, even if claimants had actual knowledge, precluded it from asserting the 'stolen car' defense. Consequently, the petitioner's application for a permanent stay of arbitration was granted, and American Transit was ordered to afford coverage to Arc Leasing within policy limits.

Automobile AccidentInsurance Coverage DisputeDisclaimer of CoverageLack of Permissive UseStolen VehicleUninsured Motorist ClaimDeclaratory Judgment ActionWaiver of DefenseStatutory Notice RequirementPolicy Exclusion Interpretation
References
10
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. LAO 0762226, LAO 0762227
Regular
Sep 05, 2007

SHIRLEE DYERLY vs. LAWRY'S RESTAURANT, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for SUPERIOR NATIONAL INSURANCE COMPANY, INTERCARE INSURANCE SERVICES, ZURICH NORTH AMERICA INSURANCE COMPANY

This case involves a dispute over insurance coverage for an applicant's neck and back injuries sustained across specific and cumulative trauma incidents. The Workers' Compensation Appeals Board (WCAB) is reconsidering an arbitrator's decision that ordered Zurich North America Insurance Company to reimburse the California Insurance Guarantee Association (CIGA) for all benefits paid by the liquidated California Compensation Insurance Company (Cal Comp). The WCAB rescinds the arbitrator's order, ruling that CIGA can only recover the amount Cal Comp would have been entitled to collect had it not been liquidated, not the full amount paid.

CIGACal CompZurichliquidationcontributionreimbursementspecific injurycumulative traumastatute of limitationsjoint findings
References
7
Case No. ADJ7110663
Regular
May 09, 2016

WILLIAM BO MATTHEWS vs. SAN DIEGO CHARGERS, ZENITH INSURANCE COMPANY, NEW YORK GIANTS, INSURANCE COMPANY OF NORTH AMERICA/ACE USA, DENVER GOLD, THE NORTH RIVER INSURANCE COMPANY

This case involves a petition for reconsideration of an arbitrator's decision regarding workers' compensation liability for a professional football player's cumulative trauma injuries. The Workers' Compensation Appeals Board (WCAB) granted reconsideration and modified the arbitrator's award, finding the applicant sustained two separate cumulative trauma injuries due to distinct periods of employment exposure. Consequently, the WCAB ruled that the petitioner, Insurance Company of North America/ACE USA (ESIS), is not liable for contribution to another insurer, The North River Insurance Company (NRIC), which had mistakenly paid a portion of a settlement. The Board affirmed the finding of two injuries, citing a significant break in employment as creating separate compensable periods, but rescinded the award to NRIC, holding NRIC should recover nothing from ESIS.

WCABPetition for ReconsiderationArbitration DecisionContributionCumulative InjuryProfessional Football PlayerInsurance Company of North America/ACE USAZenith Insurance CompanyThe North River Insurance CompanyLabor Code Section 5500.5
References
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