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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

Tri-State Employment Services, Inc. v. Mountbatten Surety Co.

The United States Court of Appeals for the Second Circuit certified a question to the New York Court of Appeals regarding whether a professional employer organization (PEO) may be a proper claimant under a labor and materials surety bond. Plaintiff Tri-State Employment Services, Inc., a PEO, provided employee leasing services to Team Star Contractors, Inc. for a construction project, covering payroll, taxes, and insurance. When Team Star failed to pay, Tri-State filed a claim with the surety, Mountbatten Surety Company, Inc., which was dismissed by the District Court. The New York Court of Appeals determined that a PEO's primary role as an administrative services provider and payroll financier creates a presumption that it does not provide labor for the purpose of a payment bond claim. The Court found that Tri-State failed to overcome this presumption by demonstrating sufficient direction and control over the workers. Consequently, the Court answered the certified question in the negative, ruling that Tri-State Employment Services, Inc. is not a proper claimant under the surety bond in the circumstances presented.

Professional Employer OrganizationSurety BondLabor and Materials BondClaimant StatusEmployee LeasingPayroll ServicesAdministrative ServicesConstruction ContractCertified QuestionNew York Law
References
16
Case No. MISSING
Regular Panel Decision
Dec 22, 1992

Aetna Casualty & Surety Co. v. Greater New York Mutual Insurance

This case involves an appeal concerning an insurer's claim for contribution. Aetna Casualty & Surety Company, the liability insurer for Trio Drug Corporation and additional insured 58 Realopp Corporation, sought contribution from Greater New York Mutual Insurance Company, Trio's workers' compensation carrier. Aetna had settled an underlying injury action where it represented both Realopp and Trio, and subsequently sued for 50% of the settlement amount. The Supreme Court affirmed the denial of Aetna's summary judgment motion and the granting of Greater New York's cross-motion for summary judgment. The appellate court applied the anti-subrogation rule, finding that Aetna could not assert a subrogated claim against its own insured, Trio, due to potential conflicts of interest arising from its dual representation in the underlying action.

anti-subrogation ruleconflict of interestsummary judgmentcontributionworkers' compensationliability insurancethird-party claimcommon law indemnityappellate reviewinsurer dispute
References
3
Case No. MISSING
Regular Panel Decision

State Farm Mutual Automobile Insurance v. Aetna Casualty & Surety Co.

This case concerns a dispute between insurance carriers following a workers' compensation claim. Douglas K. Ellsmore was injured while unloading a hospital bed when Shirley S. Miller, insured by State Farm Mutual Automobile Insurance Company, backed her car into him. Ellsmore's employer's workers' compensation carrier, Aetna Casualty and Surety Company, paid over $65,000 in benefits and then sought reimbursement from State Farm via a loss transfer claim and demanded arbitration under Insurance Law § 5105. State Farm initiated a special proceeding to permanently stay arbitration, arguing that Aetna's claim lacked legal basis. Special Term denied the stay, but the appellate court reversed this decision. The court clarified that the "for hire" provision in Insurance Law § 5105 modifies "vehicle," limiting its application to vehicles hired for transporting people (like taxis) or livery vehicles for property, and does not extend to commercial deliveries by an owner's vehicle. Consequently, Aetna was not entitled to recover compensation payments under this statute.

Insurance LawWorkers' CompensationAutomobile InsuranceLoss Transfer ClaimArbitration StayStatutory Interpretation"For Hire" ClauseCommercial DeliveryVehicle InsuranceFirst-Party Payments
References
1
Case No. MISSING
Regular Panel Decision

Greenblatt v. Delta Plumbing & Heating Corp.

The Plaintiffs, comprising ERISA funds and their trustees, sued Delta Plumbing and Heating Corporation for delinquent fringe benefits and later added New York Surety Company as a defendant on its bond. Following Delta's bankruptcy, New York Surety became the sole defendant and moved to dismiss the complaint for lack of subject matter jurisdiction. The defendant argued that a surety is not an 'employer' under ERISA and that the court lacked pendent party jurisdiction over the state-law claims. The court denied the motion, holding that the 'plain meaning' of ERISA's definition of 'employer' could extend to a surety that acts in the interest of an employer by guaranteeing contributions. Furthermore, the court found that under the legal framework applicable to this pre-1990 action, ERISA's statutory language did not confer pendent party jurisdiction.

ERISA EnforcementSurety LiabilityDelinquent ContributionsSubject Matter JurisdictionPendent Party JurisdictionStatutory ConstructionCollective BargainingMultiemployer Pension PlansEmployee Benefits SecurityFederal Jurisdiction
References
26
Case No. MISSING
Regular Panel Decision

Cement & Concrete Workers District Council Welfare Fund v. Frascone

Plaintiffs, consisting of pension and benefits funds, their administrator, and a union president, initiated a suit to recover unpaid contributions owed under collective bargaining agreements. The original defendants included Sovereign Building Corp. and Anthony Frascone, who were in default or insolvent, and Contractors Casualty and Surety Company, which was also insolvent. The primary defendants in the present motion were Trataros Construction, Inc., the general contractor, and Seaboard Surety Company, its surety. Plaintiffs sought to recover contributions based on a surety bond issued in connection with a public improvement contract where Sovereign was a subcontractor to Trataros. The defendants argued ERISA preemption, lack of subject matter jurisdiction, and defenses based on the Union's breach of agreements and the plaintiffs' failure to provide timely notice. The court asserted supplemental jurisdiction and found that the claims against Trataros and Seaboard were not ERISA-preempted. Ultimately, the court granted summary judgment to Trataros and Seaboard for claims arising from the first collective bargaining agreement due to untimely notice, but granted summary judgment to the plaintiffs for claims under the second agreement, rejecting the defendants' breach of contract defense as it could not be asserted against the funds as third-party beneficiaries.

ERISASurety BondCollective Bargaining AgreementPension FundsBenefits ContributionsState Finance LawLien LawPreemptionSupplemental JurisdictionSummary Judgment
References
27
Case No. ADJ1817205 (RIV 0076837) ADJ2824273 (RIV 0076838)
Regular
Jul 02, 2014

SONNY LOVELESS vs. NEWPORT FARMS, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, ZURICH AMERICAN INSURANCE CO., VIRGINIA SURETY INSURANCE COMPANY

This case involves a dispute over reimbursement for workers' compensation benefits paid by CIGA. The Appeals Board affirmed an arbitrator's decision granting CIGA full reimbursement from Virginia Surety and Zurich for benefits paid to the applicant. Virginia Surety's arguments that the cumulative trauma periods should be reevaluated and that CIGA was liable for the first period were rejected. The Board found Virginia Surety is bound by prior stipulations establishing two cumulative trauma periods, making its coverage "other insurance" under Insurance Code § 1063.1(c)(9) and thus excluding CIGA's liability for those benefits.

Workers' Compensation Appeals BoardSonny LovelessNewport FarmsCalifornia Insurance Guarantee Association (CIGA)Superior NationalZurich American Insurance Co.Virginia Surety Insurance Companycumulative traumastipulated awardreimbursement
References
4
Case No. VNO 0457283
Regular
Aug 28, 2007

GREGORY BRIDGES vs. FILM PAYMENT SERVICES, INC., CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for LEGION INSURANCE COMPANY, in liquidation, by BROADSPIRE, KELLEY PRODUCTIONS, INC., NATIONAL SURETY CORPORATION now FIREMAN'S FUND

The Workers' Compensation Appeals Board (WCAB) rescinded a previous award and returned the case for further proceedings to determine if the special employer's insurer, National Surety Corporation, provides "other insurance" under Insurance Code section 1063.1(c)(9). The WCAB ruled that a prior appellate decision did not collaterally estop CIGA from asserting this issue and found that the National Surety Corporation policy may constitute such "other insurance." The case now requires a determination on the merits of whether National Surety Corporation's policy is available to applicant, impacting CIGA's liability.

CIGALegion Insurance CompanyNational Surety CorporationFireman's Fundgeneral employerspecial employerjointly and severally liableother insuranceInsurance Code section 1063.1(c)(9)collateral estoppel
References
26
Case No. MISSING
Regular Panel Decision

LTV Corp. v. Aetna Casualty & Surety Co. (In Re Chateaugay Corp.)

Aetna Casualty and Surety Company appealed a Bankruptcy Court order approving a settlement involving National Fire Insurance Company, the Bureau of Workers’ Compensation, and the Debtors (LTV Corporation and its affiliates). Aetna argued that the settlement, which released National Fire from all claims, improperly extinguished its potential claims as a co-surety against National Fire under a prior bond. The District Court found Aetna's appeal was not moot, rejecting the appellees' argument that substantial consummation of the bankruptcy plan made relief impossible. The court held that the bankruptcy court erred by extinguishing a non-debtor's (National Fire's) liability to a third party (Aetna) without a finding that such release was essential to the debtor's reorganization plan. The District Court vacated the Settlement Order and remanded the case to the bankruptcy court for modification to permit Aetna's claims against National Fire or for a finding that the Settlement Order is essential to the plan.

Bankruptcy LawSurety BondsWorkers' CompensationSettlement OrderNon-Debtor ReleaseMootness DoctrineEquitable PowersReorganization PlanCo-Surety ClaimsContribution and Indemnification
References
20
Case No. ADJ7516108
Regular
Jun 06, 2011

ANGELICA CROTTE vs. UFO, INC., ILLINOIS MIDWEST INSURANCE AGENCY, VIRGINIA SURETY COMPANY, INC.

The Workers' Compensation Appeals Board (WCAB) dismissed Virginia Surety's petition for removal because it was unverified, violating WCAB Rule 10843(b). The WCAB also noted the petition's excessive length and improper attachments, which violated multiple rules, including CA Rule 10232(a)(10) and WCAB Rule 10842(c). Based on these egregious violations, the WCAB issued a notice of intention to impose a $500 sanction on Virginia Surety's counsel, Sophia E. Martinez, pursuant to Labor Code section 5813.

Petition for RemovalUnverified PetitionWCAB RulesLabor Code 5813SanctionsFrivolousWillful Failure to ComplyWCJAdministrative Law JudgeVirginia Surety Company
References
1
Case No. MISSING
Regular Panel Decision

Underpinning & Foundation Skanska, Inc. v. Travelers Casualty & Surety Co. of America

Plaintiff Underpinning & Foundation Skanska, Inc. sued Defendant Travelers Casualty & Surety Company of America for payment under a Payment Bond for construction work. Underpinning sought $1,117,050.00 from Travelers, Urban's surety, after Urban failed to pay. Travelers claimed set-offs totaling $1,151,761.00 due to alleged delays caused by Underpinning. Underpinning moved for partial summary judgment, challenging specific set-offs. The court granted Underpinning's motion in part, disallowing Travelers' set-offs for $38,199.78 in extended field overhead and $126,000.00 in additional foundation work costs due to lack of competent proof and inconsistencies. However, the court denied Underpinning's motion to disallow $249,166.00 in HRH backcharges, finding a factual question remained regarding whether Urban's payment to the Owner for these charges was voluntary or necessary to protect its economic interests. Consequently, Underpinning was awarded a minimum recovery of $184,488.78 plus prejudgment interest.

ConstructionPayment BondSubcontractorGeneral ContractorSuretySet-offSummary JudgmentDelay DamagesEvidenceNew York Law
References
42
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