INSURANCE - Cancellation of workers' comp insurance for nonpayment of premium is governed by Insurance Code §676.8, which covers failure to provide premium "upon 10 days' written notice to the policyholder by the insurer." This specific state law governing workers' comp policy cancellation does not mention Code of Civil Procedure §1013 and did not extend the 5-day notice provision. Sterling Hotels Corp. v. Workers' Compensation Appeals Board (Cirenia Vantana) 10 WCAB Rptr. 10,131 [Writ Denied]
INSURANCE COVERAGE - Uninsured motorist coverage workers' compensation exclusion–Insurance Code §11590.2(c)(4)–The purpose and intent of the workers' compensation exclusion mandated by Insurance Code §11580.2(c)(4) is to shift the cost of an industrial injury sustained by an employee, as a result of the negligence of an uninsured motorist, from the motoring public to the employer or his workers' compensation carriers. (See California State Auto. Assn. Inter-Ins. Bureau v. Jackson (1973) 9 Cal.3d 859.) ___Cal.App.4th___
INSURANCE COVERAGE - Contribution between CIGA and solvent insurers–CIGA is entitled to reimbursement from a solvent insurance carrier for temporary disability benefits caused, in part, by the cumulative trauma during the solvent's insurance carrier's period of coverage. INSURANCE COVERAGE - CIGA reimbursement of medical-legal expenses and interpreter fees from solvent insurance carrier–CIGA is not entitled to reimbursement of medical-legal expenses and interpreter fees related to medical- legal expenses because such costs are for the purpose of proving or disproving a contested claim and are costs of litigation and not reasonable costs of adjusting claims. Travelers' Indemnity Company of Illinois v. Workers' Compensation Appeals Board (Maria Lopez) 9 WCAB Rptr. 10,132 [Writ Denied]
INSURANCE COVERAGE-Officer exclusion clause–An officer employed by a corporation seeking to be covered under the employer's workers' compensation insurance policy must take the affirmative step of notifying the carrier that he wishes to have the Officer exclusion clause removed before coverage will apply. Frank Barka v. Workers' Compensation Appeals Board, Safeco Insurance Company 8 WCAB Rptr. 10,181 [Writ Denied]
INSURANCE COVERAGE- Estoppel to deny coverage–An insurance carrier is estopped to deny coverage when the representation of coverage is relied upon by the applicant and the WCJ in issuing a decision. (See Granco Steel, Inc. v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 191.) Atlantic Mutual Insurance Company v. Workers' Compensation Appeals Board (James Brewer)8 WCAB Rptr. 10,055 [Writ Denied]
INSURANCE COVERAGE– Penalty assessment for failure to obtain workers' compensation insurance from an authorized insurer–Labor Code §3710.1– The Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE) has a mandatory duty to impose a penalty assessment when an employer has failed to secure the payment of compensation as required by Labor Code §37000. The penalty is the sum of $1,000.00 per employee at the time of the order up to a maximum of $100,000.00. (See Starving v. Department of Industrial Relations (2005) 1125 Cal.App.4th 1357, 7 WCAB Rptr. 10,037.) [In this case, the employer obtained workers' compensation insurance from an insurance company not authorized to do business in California and was not therefore a "duly authorized" insurer within the meaning of Labor Code §3700.] Power Peo, Inc. v. Department of Industrial Relations, Division of Labor Standards Enforcement 7 WCAB Rptr. 10,212 ___Cal.App.4th___
INSURANCE COVERAGE– Doctrine of waiver–To constitute a waiver there must be an existing right, a knowledge of its existence, and an actual intention to relinquish it, or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that is has been relinquished. (See Scott v. Federal Life Ins. Co. (1962) 200 Cal.App.2d 384) [In this case, State Fund accepted a delinquent but insufficient premium, but the employer was advised that he would have to reapply and an audit would have to take place to determine how much premium would have to be paid to reinstate the insurance policy.] Lillianna Residential Home v. Workers' Compensation Appeals Board (Jamillah Muhammad) 7 WCAB Rptr. 10,141
INSURANCE COVERAGE– Failure to obtain workers' compensation insurance from an authorized insurer–Labor Code 3722(a)–When an employer obtains workers' compensation insurance from an insurer who is not authorized to write workers' compensation insurance in California and a penalty is assessed against the employer pursuant to Labor Code §3722(a) for failure to obtain insurance from an authorized insurer, the Division of Labor Standards Enforcement does not have discretion under Labor Code §3727.1 to withdraw the penalty assessment.Starving Students, Inc. v. Department of Industrial Relations, Division of Labor Standards Enforcement 7 WCAB Rptr. 10,037
INSURANCE COVERAGE– Doctrine of Waiver– To constitute a waiver, there must be an existing right, knowledge of its experience, and an actual intention to relinquish it, or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished. (See Scott v. Federal Life Ins. Co. (1962) 200 Cal.App.2nd 384.) [In this case, substantial evidence supported the finding of waiver of the notice of cancellation, which evidence included sending an invoice after the notice of cancellation, acceptance of post-cancellation premium payment and application of the payment to past-due premiums, and issuance of certificates of insurance.] Granite State Insurance Company v. Workers' Compensation Appeals Board (Charles Fasolo) 6 WCAB Rptr. 10,271
INSURANCE COVERAGE– Labor Code §3700–Retroactive reinstatement of a lapsed workers' compensation insurance policy does not satisfy the requirement that workers' compensation insurance be in effect on the day of inspection by the Division of Labor Standards Enforcement. (See Woodline Furniture Mfg. Co. v. Department of Industrial Relations (1994) 23 Cal.App. 4th 1643.) [In this case, at the time of the inspection by the Division of Labor Standards Enforcement, the employer's workers' compensation insurance policy had been cancelled and after the inspection, the policy was reinstated, voiding the cancellation for non-payment of premium. The penalty pursuant to Labor Code §3722 [$1,000 fine for each non-covered employee] was found to be properly imposed.] Leo's Associates, Inc. v. Department of Industrial Relations, Division of Labor Standards Enforcement 6 WCAB Rptr. 10,231
INSURANCE COVERAGE– Doctrine of Estoppels– The doctrine of estoppel requires: (1) the party stopped must be apprised of the facts; (2) the party to be stopped must intend that its conduct be relied on, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; and (4) the party asserting estoppel must rely upon the conduct to his or her injury. (See Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727.) Leticia Garcia v. Workers' Compensation Appeals Board, Omni Clean, Inc. 6 WCAB Rptr. 10,155
INSURANCE COVERAGE– The employer's liability portion of a workers' compensation insurance policy, which designates a corporation as the insured, does not automatically extend coverage to the corporation's officers as individuals. (See Republic Indemnity Co. v. Schofield (1995) 47 Cal.App.4th 220.) The insurance policy for combined workers' compensation and employer's liability coverage provides coverage as part of the same document and its exclusion provisions are applicable to the entire policy. [The exclusion that applied in this case was the exclusion for willful acts.] Canton Poultry & Deli, Inc. v. California Indemnity Company. 5 WCAB Rptr. 10,086
INSURANCE COVERAGE– Once an insurance carrier undertakes the defense of a workers' compensation claim and the employer is dismissed from the compensation case pursuant to Labor Code §3755, the employer is no longer involved in the resolution of the compensation claim and the insurance carrier has no obligation to inform the employer of settlement discussions in the compensation case. Canton Poultry & Deli, Inc. v. California Indemnity Company. 5 WCAB Rptr. 10,086
INSURANCE COVERAGE– An employer who elects to come under the workers' compensation law pursuant to Labor Code §4150 necessarily agrees to be bound by Labor Code §3751, which requires the employer to pay all costs associated with securing compensation. [In this case, truck owner-operators operating under a Lease and Subhaul Agreement elected to avail themselves of the provisions of Labor Code §4150, which permits workers' compensation insurance coverage of independent contractors. The election was subject to Labor Code §3751, and the intermodal carrier erroneously classified the owner-operators as independent contractors instead of employees, resulting in the improper deduction of workers' compensation premiums.] Irwin Albillo v. Intermodal Container Services, Inc. and Luis Montoya v. Workers' Compensation Appeals Board, Intermodal Container Services, Inc. 6 WCAB Rptr. 10,035
INSURANCE COVERAGE– An insurance broker who is otherwise an independent insurance broker, becomes an agent of the insurance carrier if the carrier allows the broker to collect premiums. (See Maloney v. Rhode Island Insurance Co. (1953) 15 Cal.App.2d 238.) [In this case, the evidence was that all payments by the insured were made through the insurance brokers and all communications between the insurance carrier and the insured were through the insurance brokers.) Dodson Insurance Group v. Workers' Compensation Appeals Board, Priority Hotel Management Inc. (Enrique Ruelas) 5 WCAB Rptr. 10,361
INSURANCE COVERAGE– No coverage for penalties– The employer's excess insurance policy that excluded indemnification for payments made in excess of "benefits regularly required by the Workers' Compensation Law" if such benefits were required because "the Insured violated or failed to comply with any Workers' Compensation Law" does not require the insurance carrier to reimburse the employer for penalties imposed under Labor Code §5814. General Reinsurance Corporation v. St. Jude Hospital. 5 WCAB Rptr. 10,107
INSURANCE COVERAGE– When an insurance policy is issued generally covering an employer's workers' compensation liability and an employee is injured in the course of employment and the premium was paid on account of that employee, a significant burden is placed on the insurance carrier to show there was no coverage and any reasonable doubts should be resolved in favor of coverage. Star Insurance Company v. Workers' Compensation Appeals Board (Oscar Shatswell) 5 WCAB Rptr. 10,036
INSURANCE COVERAGE– Notice of non-renewal of a workers' compensation insurance policy. When an insurer fails to give timely notice of non-renewal of a workers' compensation insurance policy, Insurance Code §11664 mandates the policy shall be continued for a period of 60 days after the insurer gives the notice. [In this case, insurance coverage existed as matter of law, even though evidence of insurance in the form of policy documents had not yet been issued by the insurer due to an administrative error because the notice of non-renewal had not been sent to the employer.] Catalina Car Wash Inc. v. Department of Industrial Relations, Division of Labor Standards Enforcement. 5 WCAB Rptr. 10,029
INSURANCE COVERAGE– Duty to Defend– Where the allegations in a complaint in a civil action establish without dispute that the relief sought comes with the exclusive remedy of workers' compensation, the insurance carrier has no duty to defend under the employer's liability coverage (Part 2) of a workers' compensation insurance policy. Consolidated Structural Materials, Inc. v. State Compensation Insurance Fund. 4 WCAB Rptr. 10,308
INSURANCE COVERAGE– Duty to defend– When an employer has no workers' compensation insurance coverage on the date of a specific injury and then later secures coverage for a period including an alleged cumulative injury, the Appeals Board properly ruled that the insurance coverage on the cumulative injury has no duty to provide counsel for the defense of the specific injury. Nandor Zimmerman v. Workers' Compensation Appeals Board (Bobbi Kohler) 4 WCAB Rptr. 10,271
INSURANCE COVERAGE– Cancellation of policy– In this case the insurance carrier was estopped from denying receipt of the check paying small deductibles and therefore the cancellation for non payment never went into effect and the employer was covered for workers' compensation purposes. Western Growers Insurance Company v. Workers' Compensation Appeals Board (George Driskill) 4 WCAB Rptr. 10,121
INSURANCE COVERAGE– Notice of cancellation– When an insurance carrier contends that it cancelled an insurance policy, the carrier at an evidentiary hearing on the issue should present a witness who can establish that the notice of cancellation was in fact prepared and was in fact placed in the mail. Under Evidence Code §641 when it can be established that the envelope was correctly addressed and was in fact placed in the mail, it can be presumed that the document was in fact received by the addressee. (See Craig v. Brown & Root, Inc., (2000) 84 Cal.App. 4th 416.) Claredon National Insurance v. Workers' Compensation Appeals Board (Jimmy Boyle) 3 WCAB Rptr. 10,306
INSURANCE COVERAGE– COVENANT OF GOOD FAITH AND FAIR DEALING– The implied covenant of good faith and fair dealing requires that neither the insurance company or the insured do anything that would harm the right of the other to receive the full benefits of the policy and each must act fairly and in good faith in discharging its expressed and implied contractual responsibilities. Lance Camper Mfg. Corp., v. Republic Indemnity Company of America. 3 WCAB Rptr. 10,236
INSURANCE COVERAGE– Duty to defend-Workers compensation exclusion in a Comprehensive Business Liability policy and Commercial Umbrella policy excluded coverage if the damages for bodily injury arise out of and in the course of employment or employment termination. (See Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552.) Thomas J. Culligan v. State Farm Fire and Casualty Company. 3 WCAB Rptr. 10,101
INSURANCE COVERAGE DISPUTES– A workers' compensation insurer is not immune from civil liability under Insurance Code §11758 for allegedly misallocating an insured employer's expenses and reporting that misinformation to a ratemaking organization, resulting in higher premiums for its insured. State Compensation Insurance Fund v. Superior Court (Schaefer Ambulance Service) 3 WCAB Rptr. 10,051
INSURANCE COVERAGE– Neither the language in the workers' compensation and employers' liability policy limiting coverage to "accidents" nor the general public policy against furnishing insurance for willful acts, relieved the insurance company from its responsibility to defend and indemnify its insured for a claim against the employer alleging a violation of Labor Code §132a. Keith Melton v. Industrial Indemnity Company. 3 WCAB Rptr. 10,035
WORKERS' COMPENSATION INSURANCE– Proof of insurance– The nonexistence of a valid certificate to self-insure or a record with the Workers' Compensation Insurance Ratings Bureau indicating private insurance constitutes a prima facie case that the employer failed to secure the payment of workers' compensation. When the applicant offers such documentary evidence a prima facie case is established that the employer is uninsured, the burden then shifts to the employer to demonstrate that it was in fact insured. [In this case, the employer's insurer admitted coverage and a copy of an insurance policy, which was not the original policy or even the final draft, was sufficient evidence to support a finding that the employer was properly insured.] Oma Naranjo v. Workers' Compensation Appeals Board, Mercy Hospital 5 WCAB Rptr. 10,252
WCAB PROCEDURE–Uninsured Employers Fund–The liability of the Uninsured Employers' Fund is derivative rather than vicarious of an uninsured employer who fails to pay an award. The UEF has no liability until after a formal proceeding and the employer has failed to pay the award. (See Dubois v. Workers' Comp. Appeals Bd. (1995) 5 Cal.4th 382.) There is no obligation for UEF to represent the uninsured employer at trial. The UEF's sole statutory obligation is to pay an award when an illegally uninsured employer fails to pay. P.W.G., Inc/ New Horizon Community Care & Rehabilitation Center v. Workers' Compensation Appeals Board, Uninsured Employers Fund (Annette Smith) 5 WCAB Rptr. 10,277
