legal review - pulp · 2011. 9. 19. · ©2011 acadia insurance group, llc. legal review summer...
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In this Issue:
Legal Review Summer 2011
Who Are “You”? 1
Take a Look at Noteworthy Bills of 2011…and Beyond 3
Case in Review 5
Summer 2011 Regulatory Updates 7
Who Are “You”?By Dan Swift, Esq.
This is not about the famous song by The Who, but the question recently decided by the United States
Court of Appeals for the First Circuit.
In Wright-Ryan Construction, Inc. and Acadia Insurance Company v. AIG Insurance Company of Canada, 2011 U.S. App. LEXIS 15502 (July 27, 2011), the court was asked to decide who “you” is referring to in standard “other insurance”
clauses in two commercial general liability (CGL) insurance policies applying to the same loss. Specifically, the question is whether “you” in this context refers solely to Named Insureds under the policies or whether it also includes “additional insureds”. For excess “other insurance” clauses, the answer determines which policy will be considered excess over the other.
The underlying facts involved a typical “action over” lawsuit brought by an injured worker against the general contractor on a project. Wright-Ryan Construction was hired by
the University of Southern Maine as general contractor for the construction of a new building. Wright-Ryan entered into a subcontract with Norgate Metal, Inc. for the fabrication and erection of the structural steel for the building. Norgate then issued a purchase order to Tri-Town Steel Erectors to erect the steel, and when
this work fell behind, Norgate supplemented Tri-Town’s work with workers employed by Enterprises Precision. During the steel erection work, Thomas Behrens, an ironworker employed by Enterprises Precision, fell four stories and was severely injured. Mr. Behrens filed a lawsuit against Wright-Ryan, as general contractor on the project, and later added Norgate and Tri-Town as defendants.
At the time of the project, Wright-Ryan maintained a CGL policy with Acadia Insurance Company. Wright-Ryan’s subcontract with Norgate required Norgate to maintain certain insurance and to name Wright-Ryan as an “additional insured” on Norgate’s CGL policy. Norgate’s CGL insurer was AIG, and Norgate arranged to have its policy with AIG endorsed to provide “additional insured” status to Wright-Ryan for liability arising out of Norgate’s premises or operations.
Specifically, the question is whether “you” in this context refers solely to
Named Insureds under the policies or whether it also
includes “additional insureds”.
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After being served with the Behren’s lawsuit, Wright-Ryan timely tendered the case to Norgate and AIG, seeking defense and indemnity under Norgate’s CGL policy as an “additional insured”. Norgate and AIG failed to respond to this tender, so Acadia assumed the defense of Wright-Ryan in the Behren’s suit. While defending the case, Acadia incurred approximately $40,000 in defense costs and ultimately settled the case for $150,000. Thereafter, Wright-Ryan and Acadia filed a declaratory judgment against AIG, seeking recoupment of these sums.
Acadia filed its declaratory judgment action in the U.S. District Court for the District of Maine. There being no material facts in dispute, Acadia and AIG filed cross-motions for summary judgment. On these motions, the Magistrate Judge issued a Recommended Decision, finding in relevant part: (1) the AIG policy was endorsed to add Wright-Ryan as an “additional insured”; (2) the word “liability” in the additional insured endorsement refers to Wright-Ryan’s liability; (3) Wright-Ryan’s liability arose out of Norgate’s operations; (4) the AIG policy gave rise to a duty to defend and indemnify Wright-Ryan as an “additional insured”; and (5) an analysis of the “other insurance” provisions in the Acadia and AIG policies yields the conclusion that the Acadia policy is primary and the AIG policy is excess – accordingly, the AIG policy is not implicated given the sums involved. Both parties filed objections to different portions of the Recommended Decision. The District Court then adopted the Recommended Decision without comment. Thereafter, Acadia appealed the decision to the First Circuit Court of Appeals.
The sole issue on appeal was whether “you” in the “other insurance” provisions means Named Insureds or both Named Insureds and “additional insureds”. The “other insurance” clause in each policy reads in relevant part:
a. Primary insurance This insurance is primary except when b., below, applies.
b. excess insurance This insurance is excess over: … (2) any other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement.
Acadia argued that “you” in b(2), means the Named Insured on each respective policy, so in the Acadia policy, “you” means Wright-Ryan, and under the AIG policy, “you” means Norgate. Under this interpretation, Acadia’s policy would be excess to AIG’s policy as respects Wright-Ryan’s liability, because Wright-Ryan was added as an “additional insured” by endorsement to the AIG policy. AIG argued that “you” in this context is referring to both Named Insureds and “additional insureds”. Therefore, AIG argued that the excess clause in the AIG policy is referring to Wright-Ryan, so the AIG policy is excess over Wright-Ryan’s own policy with Acadia. Relying almost exclusively on an earlier First Circuit Court of Appeals case, Wyner v. North American Specialty Insurance, Co., 78 F.3d 752 (1st Cir. 1996), the District Court adopted AIG’s interpretation, finding that “you” in the excess insurance clause included “additional insureds” as well as Named Insureds.
The Wyner case involved a CGL policy issued to a tenant, listing the landlord as an “additional insured”. This policy contained an exclusion for damage to property “you own, rent or occupy”. In Wyner, the First Circuit found that “you” in the property exclusion included not just Named Insureds but also anyone constituting an “additional insured”. The District Court believed the Wyner decision controlled in Acadia’s declaratory judgment action, and therefore, granted AIG’s motion for summary judgment and denied Acadia’s motion for summary judgment. Acadia timely appealed the District Court decision.
Acadia asked the First Circuit Court of Appeals to distinguish its case from the earlier Wyner decision and find that “you” in the “other insurance” clauses means only Named Insureds under each policy. On appeal, the First Circuit Court of Appeals agreed with Acadia’s interpretation, and reversed the District Court’s decision. The court duly noted that the first page on both policies states, “Throughout this policy the words ‘you” and ‘your’ refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.” The court stated that the clause, “any other person or organization qualifying as a Named Insured under this policy” is in reference to those persons or organizations identified as such under Section II of the policy, entitled “Who is an Insured”. This does not include a person or organization added as an additional insured.
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Accordingly, Acadia’s CGL policy issued to Wright-Ryan was found to be excess over Norgate’s policy with AIG. While the court based its decision on the plain language of the policies, it also noted that this interpretation is consistent with the design manifest in the parties’ course of dealings. In subcontracting with Norgate, Wright-Ryan intended to shift its risk to Norgate for any liability arising out of Norgate’s operations. Acadia’s interpretation of the “other insurance” provisions results in Norgate’s CGL policy being primary to Wright-Ryan’s own CGL policy for such liability. This is consistent with the risk-shifting intention of the parties.
So, who are “you”? In the context of excess “other insurance” clauses in standard CGL policies, “you” means those persons or organizations listed or qualifying as a Named Insured under the policy. This does not include an “additional insured”. ■
referred to as NAIC’s “heavy handed” position that certificates of insurance are for “information only.” NAIC was not alone, however, in taking issue with NCOIL’s draft law. Other stakeholders, most notably commercial mortgage lenders and life insurers, argued that certificates of insurance should serve as substitutes for policies. “We are looking for a document with standing,” said one spokesperson for mortgage lenders.
Clearly at an impasse, one committee member, a legislator who also works as an independent agent, reminded his colleagues that a certificate of insurance is “just a snapshot in time.” Spokespeople from the Big I and the American Insurance Association (AIA) concurred, emphasizing that only a policy can convey policy rights and coverages.
Taking a Look at Noteworthy Bills of 2011…and Beyond
By Carol Presley
At a recent conference of the National Council of Insurance Legislators (NCOIL), NCOIL President George Keiser said of the organization’s model law for certificates of insurance, “I don’t understand how something so simple has become so controversial and complicated.” The topic of certificates of insurance is a good example of the challenges organizations such as NCOIL and the National Association of Insurance Commissioners (NAIC) face in trying to build consensus among individuals – legislators and regulators – whose political philosophies cross all spectrums. The process can often be contentious and time consuming, concluding with a model law only after years of deliberations. As a result, many states decide to go it alone rather than await model laws when considering insurance legislation and regulations.
Following are a few examples from this year:
cerTificaTes of insurance: As mentioned previously, deliberations on NCOIL’s draft model law stalled at the NCOIL conference at least partly because of what Keiser, a member of the North Dakota House of Representatives,
Legal Services
Paul Strohfus, Esq. Senior Vice President Claims & Legal • [email protected]
Dan Swift, Esq. Vice President & General Counsel [email protected]
Carol Presley Government Relations Manager [email protected]
H. Suzanne Beck, Esq. Counsel [email protected]
Karoline Sands, Esq. Assistant Counsel – Compliance [email protected]
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“Certificates of insurance,” said AIA’s Eric Goldberg, “are only ‘courtesy’ documents.” He argued that an amendment proposed by mortgage lenders will give “unreasonable weight” to certificates of insurance.
At the end of the lengthy session, committee members ultimately decided to start anew in working with all stakeholders in drafting a model law. Meantime, NAIC also has formed a working group to examine the issue.
With no model law in sight for the immediate future, New Hampshire moved forward this year in passing its own bill. Effective Jan. 2, 2012, Chapter 137 of 2011, prohibits certificates of insurance from being misleading, deceptive, or misrepresentative, or violating any law. Additionally, Chapter 137 requires certificates of insurance to contain a statement making clear that the document is for “information only” and does not confer any rights upon the certificate holder nor amend any of the coverages or terms of the referenced policy. A copy of the law can be found at the following link: http://www.gencourt.state.nh.us/legislation/2011/HB0419.html
commercial lines modernizaTion: New York took a small step forward this year in the area of commercial lines modernization. Chapter 490, with an effective date of Nov. 15, 2011, was the subject of intense negotiations among committee chairs, industry representatives and Administration officials in the final days of the session. Though the resultant legislation fell short of what the industry would have liked, it is considered, nonetheless, a positive step in relieving some of the industry-claimed burdensome regulations of doing business in New York. Insurers hope it is a foundation upon which to build further reforms going forward. Most within the industry agree, however, that legislators are unlikely to revisit the issue in 2012 other than to consider technical revisions, if necessary, to the law passed this year.
As approved by the Legislature, Chapter 490 creates an exemption for insurers from certain rate and form filing requirements for large commercial insureds.
Businesses or entities coming under this definition must have a risk manager (the risk manager may be an insurance producer who meets certain requirements), generate a premium in excess of $25,000, and meet one of the following criteria:
✔ have a net worth of at least $7.5 million;
✔ have gross assets exceeding $10 million and a net worth of at least $1.5 million;
✔ be a for-profit business with annual gross revenues exceeding $15 million and have a net worth of at least $1.5 million;
✔ be a for-profit business with gross assets exceeding $10 million and annual gross revenues exceeding $15 million;
✔ be a not-for-profit or public entity with an annual budget exceeding $20 million;
✔ be a municipality with a population of 50,000 or more; or
✔ have 50 employees or 100 employees when combining the parent and subsidiary companies.
In addition, consumer safeguards are built into the bill including provisions requiring insurers to notify large commercial risks that rates and policy forms are not subject to New York State Insurance Department (NYSID) approval. The Superintendent is also given authority to redefine “large commercial insured” every five years to reflect changes in the consumer price index.
Workers’ comPensaTion: Just as Vermont went against the tide in the 2010 elections, so too is the state pursuing its own path in the arenas of health care and workers’ compensation. Act 48, Gov. Peter Shumlin’s (D) legislative priority for 2011, sets Vermont apart from all others as being the sole state on the precipice of enacting a single-payer health care plan. Though a number of federal waivers will be necessary for the so-called Green Mountain Care plan to be up and running by its scheduled implementation date of Jan. 1, 2014, numerous hearings and studies are ongoing now for reports that must be submitted to the Legislature by Jan. 1, 2012. Included among these is a report on the “feasibility of integrating or aligning Vermont’s workers’ compensation system with Green Mountain Care…” Despite the complexities and myriad questions involved in transitioning workers’ compensation into a single-payer health plan, the state agency responsible for issuing this report has yet to hold, or even schedule, any hearings. While insurance trade groups will likely fight
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efforts to integrate workers’ compensation into Green Mountain Care, many believe it will be a difficult battle to win. Gov. Shumlin has the strong advantage of having party control in both the House and Senate.
Meantime, Maine joined the ranks this year of most other states attempting to curb rising medical costs in workers’ compensation by enacting medical fee schedules. As passed by the Maine Legislature, Chapter 338 calls for the Workers’ Compensation Board to create a medical fee schedule by Dec. 31, 2011. If that deadline is not reached, reimbursement rates for medical services will automatically change so that they are 105 percent of the average private third-party payor payment rate.
New Hampshire remains one of only a few states throughout the country without a medical fee schedule. A bill introduced this year to create a fee schedule was ultimately amended and passed to require only a study of doing so. Most recently, however, key legislators have expressed a willingness to further consider compromise legislation on this subject as early as
September or October of this year. At this juncture, it is unclear what such a compromise will look like.
Another workers’ compensation trend among states in recent years has been the passage of laws ensuring compensability of benefits to firefighters for certain diseases acquired in the “line of duty.” The precise definition of “line of duty” is coming under scrutiny in Vermont where a volunteer firefighter was recently denied benefits for an injury that occurred while installing insulation in the fire station. Though the insurer’s denial of benefits was overturned by the Department of Labor, the publicity generated as a result of this incident will be the genesis of legislation next year to ensure that benefits are provided in circumstances like these.
If you want copies of any of the laws referenced in this article or have questions relating to these or other legislative proposals, please contact Carol Presley at [email protected]. ■
decision to award the claimant total incapacity benefits for a violation of the 14-day rule. The Law Court acknowledged that the claimant suffered no incapacity because of the injury. Nonetheless, the Court found that a full award back to the original alleged date of incapacity must be awarded due to the stringent penalty language in the Rule and the fact that the employer filed a notice of controversy in the early morning hours of the fifteenth day after notice of the claim.
Mr. Doucette injured his back while working for Sysco on April 1, 2004. He timely reported the injury and was sent
Case in ReviewBy Dan Swift, Esq.
$140,000 Penalty For Minor Filing Delay – Maine High Court Decision Forces Workers’ Compensation
Board to Revisit Stringent Rule.
A Maine Law Court decision on June 9, 2011, has led the Maine Workers’ Compensation Board to assemble a small working group of interested parties to revisit and revise the penalty provisions associated with the so-called “fourteen-day rule”. The rule requires that an employer (or workers’ compensation carrier) “within 14 days of notice or knowledge of a claim” for incapacity or death benefits to: (i) accept a claim; (ii) pay without prejudice; or (iii) deny the claim and file a notice of controversy.1 Section 2 of this Rule provides, “If the employer fails to comply with the provisions of 1.1, the employee must be paid total benefits, with credit for earnings and other statutory offsets, from the date of incapacity…”2
In Matthew Doucette v. Hallsmith/Sysco Food Services, Inc., et al., 2011 ME 68 (2011), Maine’s highest court affirmed a Workers’ Compensation Board hearing officer’s
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for treatment. He was put on light duty for approximately two weeks and then released to full duty. He did not lose any earnings as a result of the injury. In May 2004, Mr. Doucette’s employment with Sysco was terminated for other reasons. In 2008, he reinjured his back while working for another employer. Thereafter, Mr. Doucette filed a petition for award against Sysco for the 2004 injury.
The third-party administrator for Sysco learned of Mr. Doucette’s petition for the 2004 injury on January 16, 2009. On January 26, 2009, the claim representative started the process of filing a notice of controversy and forwarded it to another unit in her department for forwarding to the Maine Workers’ Compensation Board. The next day, she received a rejection from this other unit, stating that the claim could not be electronically submitted to the workers’ compensation board because it lacked certain information, including a jurisdictional claim number. The claim representative then learned that she needed to send in a first report of injury in order to obtain a jurisdictional claim number. The first report of injury was submitted and accepted by the Board on January 29, 2009. On that same date, the claim representative believed she had electronically transmitted the notice of controversy to the Board, and she sent a hard copy by certified mail to Mr. Doucette and his attorney. This was the fourteenth day after learning of the petition. The claim representative later learned, however, that the third-party administrator’s electronic communication system bundled the notice of controversy with other claims and electronically transmitted them to the Board after midnight. Accordingly, the Board’s records indicate January 30, 2009, as the date of filing – the fifteenth day after notice of the petition.
In the underlying hearing, the hearing officer acknowledged that the third-party administrator diligently attempted to file the notice of controversy in a timely fashion but a series internal problems and its automated system of bundling claims culminated in the notice not being transmitted until the fifteenth day. Given the penalty language for late filing in the Board Rule, the hearing officer ordered Sysco to pay Doucette net incapacity benefits from April 1, 2004 (the date of injury and alleged incapacity) to April 13, 2009 (the date Sysco ultimately cured the late notice violation) – an amount in excess of $140,000.
On appeal, the Law Court found that the hearing officer did not error in concluding that the notice of controversy was late by one day. The Law Court further found that
the associated penalty for violating the fourteen-day rule required an award of full incapacity benefits (with credit for earnings and statutory offsets) from the original date
of alleged incapacity up to the date of cure. The Court confirmed that the penalty promulgated by the Board for violating the fourteen-day rule is within its statutory authority. The Court referenced one of its earlier decisions, stating that the purpose of the fourteen-day rule is to ensure “the speedy, efficient, just and
inexpensive disposition of all proceedings under the Act.”3 The Court reasoned that the penalty is in furtherance of this purpose. In affirming the hearing officer’s decision, the Court stated, “Although the equities of this case arguably weigh in favor of a lesser penalty, there were no equitable remedies available to the Board.”4 In other words, the penalty language in the Rule offered no discretion to the hearing officer. Accordingly, the judgment was affirmed.
Shortly after the Doucette decision, Paul Sighinolfi, the Executive Director of the Maine Workers’ Compensation Board, announced his decision to assemble a small working group of stakeholders to review and revisit the penalty requirements for violating the fourteen-day rule. As of the date of this article, it is unclear what specific changes will be proposed. ■
1Me. W.C.B. Rule, ch. 1, § 1.
2Me. W.C.B. Rule, ch. 1, § 2.
3Doucette at 18.
4Id. at 21.
In affirming the hearing officer’s decision, the Court
stated, “Although the equities of this case
arguably weigh in favor of a lesser penalty, there
were no equitable remedies available to the Board.”
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June 3, 2011 Bulletin 2011-12; Review of Continuing Education Compliance of Insurance Producers http://www.mass.gov/?pageID=ocaterminal&L=6&L0=Home&L1=Business&L2=Insurance&L3=Division+of+Insurance+Regulatory+Information&L4=DOI+Regulatory+Bulletins&L5=2011+DOI+Bulletins&sid=Eoca&b=terminalcontent&f=doi_Bulletins_bulletins_11_12&csid=Eoca
June 29, 2011 News Release: Insurance Division Updates Tornado Claim Numbers 9,500 Claims and & Estimated $175 Million in Costs http://www.mass.gov/?pageID=ocapressrelease&L=1&L0=Home&sid=Eoca&b=pressrelease&f=20110629_doitornadoupdate&csid=Eoca
neW york sTaTe insurance deParTmenT
April 13, 2011 Circular Letter No. 6 (2011) Re: Sale of Unapproved Insurance Policies or Contracts to Residents of New York State http://www.ins.state.ny.us/circltr/2011/cl2011_06.htm
April 11, 2011 Regulation 194, Producer Transparency: Frequently Asked Questions http://www.ins.state.ny.us/faqs/faqs-reg194.htm
April 27, 2011 Insurance Fraud Report - First Quarter 2011 http://www.ins.state.ny.us/frauds/stats/fd11stat1.pdf
April 26, 2011 Final Adoption of the First Amendment to Reg. 68-A (Prescribed Policy Endorsements) http://www.ins.state.ny.us/r_finala/2011/rf68at.pdf
April 19, 2011 Final Adoption of 12th Amendment to Regulation 41 (11 NYCRR) Excess Line Placements Governing Standards http://www.ins.state.ny.us/r_finala/2011/rf41a12t.pdf
May 10, 2011 Opinions of the Office of General Counsel Re: Requiring a Third-Party Claimant to Execute a Release http://www.ins.state.ny.us/ogco2011/rg110401.htm
Re: Assessment Cooperative Premium Credit http://www.ins.state.ny.us/ogco2011/rg110402.htm
Summer 2011 Regulatory Updates(As of 8/10/2011)
connecTicuT insurance deParTmenT
May 4, 2011 Bulletin CL-6 Re: Rescission of Bulletin CL-2, Sales Tax Collection for Repair Services to Motor Vehicles http://www.ct.gov/cid/lib/cid/Bulletin_CL-6_-_Rescission_of_CT_Insurance_Department_Bulletin_CL-2.pdf
June 10, 2011 News Release: State Announces Convictions in 33 Home Improvement Cases http://www.ct.gov/ag/lib/ag/press_releases/2011/061011hicconvictions.pdf
maine bureau of insurance
April 28, 2011 Policy Update Re: New Mediation Policy Effective 6/1/2011 http://www.maine.gov/wcb/index.html
massachuseTTs division of insurance regulaTionApril 12, 2011 News Release: Commissioner of Insurance Approves Workers’ Compensation Rate Agreement, Saving $65 Million for Businesses http://www.mass.gov/?pageID=ocapressrelease&L=1&L0=Home&sid=Eoca&b=pressrelease&f=20110412_DOIworkerscomp&csid=Eoca
April 4, 2011 Bulletin 2011-07 Re: Certificates of Insurance http://www.mass.gov/?pageID=ocaterminal&L=6&L0=Home&L1=Business&L2=Insurance&L3=Division+of+Insurance+Regulatory+Information&L4=DOI+Regulatory+Bulletins&L5=2011+DOI+Bulletins&sid=Eoca&b=terminalcontent&f=doi_Bulletins_bulletins_11_07&csid=Eoca
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May 10, 2011 Re: Insuring Self-storage Facility http://www.ins.state.ny.us/ogco2011/rg110403.htm
June 1, 2011 2010 Annual Report of Superintendent of Insurance to the New York State Legislature http://www.ins.state.ny.us/acrobat/annrpt_2010.pdf
June 15, 2011 Emergency Adoption of the 5th Amendment to Regulation 119 - Workers’ Compensation Insurance http://www.ins.state.ny.us/r_emergy/pdf/re119a5t.pdf
June 17, 2011 Office of the General Counsel Opinion Re: Dishonored Check http://www.ins.state.ny.us/ogco2011/rg110502.htm
June 15, 2011 Office of the General Counsel Opinion Re: Independent adjuster licensing requirements. http://www.ins.state.ny.us/ogco2011/rg110601.htm
June 16, 2011 Office of the General Counsel Opinion Re: Anti-arson applications. http://www.ins.state.ny.us/ogco2011/rg110602.htm
June 21, 2011 Office of the General Counsel Opinion Re: Cancellation notifications. http://www.ins.state.ny.us/ogco2011 /rg110603.htm
neW york Workers’ comPensaTion boardAug. 1, 2011 Re: Reimbursement rates for medically managed detoxification (MMD) and medically supervised inpatient withdrawal (MSIW) for workers’ compensation claimants. http://www.wcb.state.ny.us/content/main/SubjectNos/sn046_468.jsp
vermonT deParTmenT of banking, insurance, securiTies & healTh careApril 18, 2011 Bulletin 160 Re: New Property & Casualty Rates and Forms Filings http://www.bishca.state.vt.us/sites/default/files/Bul-I-160.pdf
June 15, 2011 Bulletin 161: Sales or Investment Advice Related to Securities Products by Insurance Producers http://www.bishca.state.vt.us/sites/default/files/Bulletin_161_Securities_Products.pdf
Aug. 10, 2011 Bulletin 162: Motor vehicle total loss settlements. http://www.bishca.state.vt.us/sites/default/files/Bulletin_162.pdf
Aug. 10, 2011 Bulletin 164: Motor vehicle diminished value claims. http://www.bishca.state.vt.us/sites/default/files/Bulletin_164.pdf
Acadia is pleased to share this material for the benefit of its customers. Please note, however, that nothing herein should be construed as either legal advice or the provision of professional consulting services. This material is for informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or
representation is made as to accuracy or completeness.