Can State Legislature’s “Impair” the Obligations and Rights of Insurance Contracts to Force Insurers to Cover Losses to Commercial Enterprises Under Commercial Insurance Policies Due to COVID19?

Post on Contract Clause and State Legislation to Force Insurers to Cover Losses Under Commercial Insurance Policies due to COVID19 Pandemic

Lawyer’s Weekly Chronicles Appellate Court Victory by Law Offices of Carson J. Tucker

The lawyer’s weekly recently published an article on the Menard v Imig case in which I successfully represented the Macomb County governmental defendants in the Court of Appeals, briefing and arguing this case addressing governmental immunity and the highway defect exception under the Governmental Tort Liability Act.

Macomb County Road Department Not Liable

 

Former Employee’s Alleged Criminal Activities Relevant to Determine “Wage Earning Capacity” for Purposes of Assessing Entitlement to Workers Compensation Benefits

In a case I brought to the Michigan Supreme Court, which remanded in Omian v Chrysler, 495 Mich. 859 (2013), to the Court of Appeals for consideration of my appeal, the Michigan Court of Appeals has now reversed the decision I originally appealed.  In Omian v. Chrysler.COA.Published, the Court of Appeals agreed that evidence of a former employee’s ability to engage in a financially lucrative criminal enterprise generally allows consideration of that employee’s ability to “continue to earn wages” despite his or her claim that a work-related injury entitles him to wage-loss benefits.  I argued that an ability to earn wages, any wages, even those gained through nefarious criminal activities, should be admissible to demonstrate that the claimant is not entitled to be paid wage-loss benefits based on a claimed disabling injury – an injury he or she claims is preventing him from earning wages in other legal and gainful employment.

Although the Court did not agree with all of my arguments, it reversed the case on the main principal espoused and directs the administrative tribunal to consider the evidence.

 

Insurance Coverage Not Available to Employer Mistakenly Listed as Insured on State-Required Workers Compensation Forms

The Michigan Court of Appeals ruled on Tuesday, February 17, 2015, that insurance coverage was not available to an employer (Delphi) merely because the insurers had errantly listed the employer on forms required to be filed with the state to notify it of the existence of workers’ compensation insurance.

Delphi had multiple subsidiaries, some of which had been and were insured by policies issued by the insurers for workers compensation claims coverage.  However, Delphi itself was self-insured, and did not therefore require or purchase workers compensation insurance from an insurance carrier.  The insurance companies had mistakenly listed Delphi, generally, rather than the insured subsidiaries, on the forms required by the state of Michigan to list and certify the existence of workers compensation insurance coverage for employers.

When Delphi entered bankruptcy reorganization in 2005, because it was self insured, insurance coverage for underlying workers compensation claims filed by employees were assumed by the state’s “self insured security fund” under Michigan law. MCL 418.537(1).  However, the state objected in the bankruptcy proceedings, and claimed that the insurers’ listing of “Delphi”, rather than the insured subsidiaries on the state-required notice forms bound the insurers to cover the claims, rather than the state of Michigan’s self-insured security fund.

When Delphi’s obligations were eventually discharged in bankruptcy, the insurers filed an adversary proceeding in the bankruptcy court (essentially the equivalent of a declaratory judgment action) asking the court to rule on the underlying issues regarding errant listing of the employer, Delphi, on the Michigan state workers compensation insurance notice forms.  While this was pending the director of Michigan’s Workers Compensation Agency scheduled a “Rule 5” hearing to determine whether the insurers were liable for the Delphi claims under the policies that had been issued to the subsidiary companies.

The bankruptcy court stayed the Rule 5 proceeding.  It determined it had jurisdiction to consider the underlying issue.  However, the Second Circuit Court of Appeals ruled that while the bankruptcy court had jurisdiction to consider the scope of coverage in the underlying insurance policies, it did not have jurisdiction to consider whether the insurers were nonetheless liable for filing the inaccurate forms in Michigan.

The insurers then filed a declaratory judgment action in the Michigan Court of Claims seeking determination of its coverage obligations under the policies for the Delphi claims.  The insurers argued that the policies controlled the obligation of coverage and not the errant listing of the wrong employer on the state-required forms.  The Court of Claims agreed and the state appealed.

The Court of Appeals affirmed, holding that the inaccurate designation of Delphi on the state-required notice forms did not trump the contractual language in the insurance policies themselves, which underwrote and insured only the subsidiary company’s workers compensation obligations.  Liability for the workers’ compensation claims filed and/or to be filed by Delphi were not covered by the insurers’ policies, which had insured only the subsidiary companies.

This is an interesting and somewhat procedurally complex case, which addresses significant liabilities that, according to the holding, will be borne by the state of Michigan, rather than by the insurers.

However, the holding and the rationale is rather unremarkable.  The underlying insurance contracts control the coverage obligations vis-à-vis the listed insureds, not another party that was not underwritten for such coverage.

Read the case here:  Ace American, et al. v. Workers Compensation Agency Director, et al.

 

 

Court of Appeals Issues Ruling On Independent Contractor Case

The Michigan Court of Appeals issued its opinion in a case I briefed (92675_Moore_Appellant’s_Brief_313440.12.26.2013.1838)  and argued in the Court of Appeals last summer, ruling consistent with the Supreme Court’s recent disposition of workers compensation insurance coverage for subcontractors holding themselves out to be employers, while claiming to be employees.

The facts involved a workers compensation claimant who was hired to do a four-hour roofing job by the putative “employer”.  The claimant ran an independent roofing business, had other workers doing roofing work at another location, purchased workers compensation insurance, and otherwise held himself out to be a roofer doing roofing work.  He injured his foot while performing the four-hour job and sought workers compensation benefits from the company that had hired him to do that job.  Several iterations of a decision were rendered by the workers compensation board and the appellate commission.  The Court of Appeals granted my application for leave to appeal, and then, plaintiff’s cross-application on a wage-loss calculation issue (a very interesting issue in its own right but which is likely rendered moot by this finding that the claimant was not in fact an employee).

The coverage case involved several underlying insurance companies potentially covering the claim depending on the employment status of the claimant.  What is remarkable, among other interesting procedural twists and turns, is that two Judges on the panel I argued the case before were on opposite sides of the underlying issue in a Court of Appeals conflict panel opinion issued after the Court of Appeals convened a special conflict panel to address whether the language of MCL 418.161(1)(n) (pre-2011 amendments) was conjunctive or disjunctive, requiring satisfaction of all or only one of the “elements” listed to remove or, divest, a claimant of “employee” status under the Workers Disability Compensation Act.

That conflict panel decision by the Court of Appeals actually ruled against the arguments I forwarded in my brief, but as I predicted in the brief, and at oral argument, the Supreme Court was considering the conflict panel’s decision and was likely to overrule it, which they did, as I explained in this post:  Supreme Court Overrules Court of Appeals Decision Defining Employees for Purposes of Workers Compensation Entitlement

Thus, at oral argument, I made a full frontal assault on the conflict panel’s decision reading the statutory language as conjunctive (much to the satisfaction of Judge Borrello, who the Supreme Court ultimately sided with), and, as well, in my arguments section of the brief.

The Court also used my argument to counter the Appellate Commission’s unique (if not strained) reading of the meaning of the introductory phrase of the statute “in relation to this service” (my emphasis).  In its decision, the appellate commission reasoned that the phrase contained in MCL 418.161(1)(n) referred not to roofing in general, but roofing on behalf of the putative employer.  The Commission had stated that plaintiff did not maintain a separate business of roofing for this employer, nor was he hired by this employer in his capacity as a roofing contractor with a crew of workers. Rather, the Commission had stated plaintiff was hired by the putative employer as an individual worker.

As I argued in my brief, this reasoning was flawed because the statutory phrase “in relation to this service” refers to roofing in general. And, the Court of Appeals cites to the case I referred to, Reed v. Yackell, 473 Mich 520, 537 (2005), in which the Supreme Court had used the precise example factually relevant in this case, to wit, a roofer doing roofing work!  In other words, the Court of Appeals went on to reason, the phrase “in relation to this service” refers to the type of services performed, not the identity of the party receiving the services.

It was one of the more active panels that I have been before and they were extremely engaged in the issue and the outcome.  Read the decision here:  Moore Opinion

If you have any questions about this case and its impact on general liability and workers’ compensation insurance coverage determinations please call Carson J. Tucker, (734) 218-3605.

Court Holds “Bodily Injury” Damages Include “Pain and Suffering” and “Non-economic Damages” In “Motor Vehicle” Accident Claims Against Government

In a much awaited opinion, the Michigan Supreme Court has held that a claimant may recover “nonecconomic damages” such as “pain and suffering” and “emotional distress” damages and excess “economic damages” in actions against the government under the “motor vehicle” exception to governmental immunity.

Two lower appellate court cases came to opposite conclusions about whether the term “bodily injury” in the motor vehicle exception, Compiled Laws (MCL) 691.1405, including such excess economic and traditional, tort “noneconomic” damages.

Before this opinion, the Governmental Liability Act (GTLA) had been construed narrowly to the strictest confines of the definition of terminology used in that act.  However, the Court here rules that because the common law jurisprudential definition of the term “bodily injury” had traditionally included these types of damage claims, and because the Legislature never explicitly reined in that definition, even after passage of the 1964 GTLA, the statutory term as used in the “motor vehicle” exception, and, likely in other sections of the GTLA will make such damages available to the claimant in actions against the government.

Read the opinion here:  Hannay-Hunter Opinion Supreme Court

I submitted an amicus curiae brief in the Michigan Supreme Court calendar session on this case for Michigan Townships Association and the counties of Macomb, Oakland and Wayne.  (99705-sc-amicus-curiae-br).

I also participated in a panel discussion about this case at the State Bar Negligence Law Section meeting in September.

Read more extensively about this case, including the lower appellate court opinions in my previous post, here:

http://amicus-curious.com/2014/09/22/supreme-court-to-address-interplay-if-any-between-the-no-fault-act-and-the-governmental-tort-liability-act/

If anyone has questions about this case and its impact, please let me know.

Employee Driving Company Truck to Job Site Not “In the Course and Scope of Employment” Under Workers Disability Compensation Act

The Court of Appeals (in a 2-1 majority opinion) issued a significant case yesterday, albeit unpublished, holding that an employee driving a company vehicle to a job site location in another part of the state was not “in the course and scope of his employment” when injured in a traffic accident while en route to the job site.

The Court of Appeals opinion is here:  Little, et al. v. Kappen Tree Service, et al. COA (1).

The Court of Appeals cites the general rule that ordinarily injuries received while employees are traveling to and from work are not compensable by the employer’s workers’ compensation insurance coverage because such injuries do not “arise out of and in the course of” employment within the meaning of the Michigan Workers Disability Compensation Act (WDCA), MCL 418.101, et seq.  MCL 418.301 requires for an injury to be compensable it must both “arise out of” and occur “in the course of employment”.

The Court of Appeals reasons that the employee faced no special risks other than those faced by the ordinary commuter to and from work.

Judge Hoekstra dissents.  He reasons that the employee was performing a “dual purpose” and therefore an exception to the “going to and coming from” exclusion applied.   The “dual purpose” was the employee bringing another employee to the job site so that employee could drive another vehicle home the day of the accident.  Judge Hoekstra would have found that the employee was “in the course and scope of his employment” and therefore covered by workers compensation, rather than no-fault automobile liability insurance.

This is an important case given the many disputes between no-fault automobile liability insurers and employers and their workers’ compensation insurers when an accident occurs in a vehicle while the employee is traveling to or from work, or driving his or her vehicle during the work day.

If anyone has questions regarding this decision, please contact Carson J. Tucker, JD, MSEL at (734) 218-3605.

 

 

 

Equitable Tolling of Medical Malpractice Claim Waiting Period on Supreme Court’s Mini-Oral Argument Calendar

The Michigan Supreme Court has ordered mini-oral argument to be held in two cases addressing a very significant issue dealing with whether trial courts can disregard the notice waiting period required before filing a complaint in a medical malpractice action, either by disregard of the defect or allowing amendment of the complaint under MCL 600.2301.

Here is the Court’s order, Furr v. McLeod Order, which the Court consolidated with another case addressing the same basic issue, Tyra v. Organ Procurement Agency of Michigan, et al., MOAA Order.

I previously wrote about these cases as they were making their way up through the Court of Appeals.  Those prior posts are below:

Equitable Amendment of Complaint Allowed in Med Mal Action

Court of Appeals Impanels Conflict Panel to Consider Whether Trial Courts Can Allow Defective Medical Malpractice Claims to Go Forward

Insurers and Businesses Should Always Consider What Options are Available for Insurance Coverage and Recovery of Insurance Assets When Facing a Dispute, Claim or Lawsuit

One of the most important ways insurance companies and businesses can manage their assets and control their liability is to think creatively about insurance and insuring agreements in managing their day-to-day business operations.  Disputes, claims, and yes, lawsuits often arise in the ordinary course of thriving and vibrant businesses.  This is a natural consequence of a successful business managing risk in the process of seeking to maximize profits.

As insurance coverage counsel, I regularly advise businesses and insurance companies as to their defense and indemnity obligations under commercial general liability, errors and omissions, and workers compensation insurance policies, among others.

I have assisted insurance companies and businesses by guiding them through various aspects of coverage, including initial assessment of coverage positions, preparation and drafting of coverage opinions, including preparing related correspondence to the insurers or insureds, and other parties involved, e.g., coverage denials, reservation of rights, etc., and pursuing, where appropriate, declaratory judgment and/or indemnity and subrogation actions with respect to coverage issues.

In this capacity, I have had several significant successes in both state and federal courts in securing judgments for businesses and insurance companies or in forcing agreeable settlements with insureds and other insurance companies.  Some of the cases and issues I have worked on include the following:

 

• Providing coverage analysis and primary litigation support in filing a declaratory judgment action filed in federal court for a major national retail store as to potential coverage and indemnification from an insurer under an “additional insured” provision in a vendor / supplier contract between the store and the manufacturer. I served as primary insurance coverage counsel for the store relating to the underlying case, which was a personal injury / product liability lawsuit against the store involving paralysis of a 15-year old.  The plaintiff jumped into shallow water from a water trampoline manufactured by a company that sold a variety of recreation products in the retailer’s stores throughout the country.  The manufacturer and the retailer had a vendor-supplier agreement in which the manufacturer agreed to add the retailer as an additional insured to its general liability insurance policies, and provide indemnity to it for liability arising out of use of its products.  The insurer had agreed to defend the retailer in the lawsuit in Michigan.    Lawsuits were pending against the manufacturer across the country for injuries suffered due to use of another one of its products.  The manufacturer filed for bankruptcy protection in the 8^th Circuit in Nebraska, after which the insurer pulled out of the defense of the retailer in Michigan.  I prepared a coverage opinion, concluding the insurer was obligated to continue defending the retailer, and I filed a declaratory judgment action in federal court in Michigan despite the bankruptcy stay.  I fended off attempts by the insurer to enforce the bankruptcy stay against the retailer in Michigan, won motions filed for contempt of the stay, and ultimately succeeded in forcing a settlement of the claim on behalf of the retailer for the total amount of the policy limits to which the retailer would have been entitled for coverage of the underlying claims.  This resulted in a $0 payout by the retailer in settlement of the underlying lawsuit in Michigan.

 

• Filing suit against an insurance company in federal court for denial of coverage of an underlying lawsuit involving a shooting at a gas station. The case is Employers Mutual Casualty Company v. Al-Mashadi et al., 2009 WL 2711963.  While the underlying lawsuit was pending in circuit court, I filed the declaratory judgment action in federal court, drafted the summary judgment motion and brief, and argued there was no coverage for the underlying lawsuit and claim arising out of a shooting by an employee of one of his friends when the two were engaged in horseplay with a gun belonging to the gas station’s owner.  After arguing the motion, the district court granted the insurer summary judgment, ruling no coverage was owed by the insurance company in the underlying lawsuit.

 

• Providing emergency litigation and appeal response to a zoning dispute in which an international energy company sought to construct (and did construct) a meteorological testing antenna (MET) a “wind testing tower”, without a proper zoning variance from the insured township. The township’s Zoning Board of Appeals rejected the power company’s appeal for a variance and the power company sued the township.  I stepped in and filed several injunctive motions, including an emergency circuit court appeal to thwart the power company’s efforts to permit the tower to remain as constructed on the property.  The circuit court issued injunctive relief (including an order to tear down the fully constructed tower) and forced the power company to pick up the insurer’s legal fees.

 

• Preparing a coverage opinion and denial of coverage letter in a defective construction / defective product dispute under an occurrence based general liability policy (including products / completed operations hazards coverage). The insured, a cement company, filed suit against contractors and subcontractors, and a city, for failure to pay for delivery of cement.  The defendants filed a counter-suit under various theories and alleged the cement was defective, causing defects in and need for repair to the newly installed sidewalks.  In its ruling in the underlying suit, the trial court concluded the cement met specifications required by the contract and was therefore not defective.  A combination of factors led to the defective sidewalks, but not the delivery by the cement company of a defective product. The weight of authority provides that no “occurrence” arises from the provision of a non-defective product when the manufacturer of that product seeks coverage for damages alleged as the result of incorporation of its product into other work.  Since the insured provided a product that met the specifications required for the municipal sidewalk project there was no “occurrence” and therefore no coverage for the claims in the underlying lawsuit.

 

• Providing a “second look” coverage opinion where in-house coverage counsel concluded there was no coverage for business interruption losses as a result of a large stage collapse and resulting debris field on the floor of the Pontiac Silverdome during summer months when the Silverdome was rented out for various events. The insured supplied the staging, decking and truss grids for the event.  Contractors and subcontractors were employed to erect it.  I analyzed the applicable policy language and concluded coverage was owed on the precise risk involved.  The policy covered “property damage” which included the loss of use of property caused by an occurrence, even if that property had not itself been damaged.  Michigan courts have awarded consequential damages such as “delay damages”, “lost profits”, and “diminution in value and use”, in cases under commercial general liability policies with similar or identical language to the policies covering “occurrences” “because of” “property damage”.  As none of the “business risk” exclusions in the policy applied, and it appeared the stage collapse was not due to the fault of the subcontractors or contractors employed to erect the stage, coverage was arguably owed and the insurer had a duty to defend and potentially indemnify the owner of the Silverdome.

Feel free to call or contact me if your business would like to explore options regarding insurance coverage and recovery.

 

Special Appellate Counsel for Emergency Appeals in State and Federal Court of Appeals and Supreme Court

It is the eve of trial.  The trial court judge, bent on forcing you into an unsavory settlement with opposing counsel, has granted opposing counsel’s motion in limine to exclude your proposed evidence from the jury’s consideration.  This is a key part of your client’s case and without it your client may be facing 100 percent of the responsibility for the damages alleged as a result of the significant allegations in the underlying lawsuit.  Sound familiar?

Is there a way to even the playing field, or, even better, to have the trial court’s errant legal rulings on the motion corrected?  Or, do you simply capitulate?

There is still hope.  And it can be done, even during the trial.

Carson J. Tucker specializes in prosecuting high-stakes, last-minute emergency appeals seeking interlocutory review of suspect legal rulings.  After all, if the trial court is wrong, or even if the Court of Appeals agrees to take a closer look, this can significantly alter the posture of the parties to the lawsuit.

I am experienced and adept at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and ruled upon as soon as possible.

In most cases, these actions have stopped the trial from immediately proceeding.  In many of the cases handled by Mr. Tucker, these actions have even resulted in the creation of precedent from the Michigan Court of Appeals and Michigan Supreme Court that changes the entire make-up of the pending lawsuit.  In the least, this type of action can properly re-orient the parties positions and attitudes with respect to settlement demands.

With adept and efficient appellate counsel ready to assist at a moment’s notice, your case can be quickly analyzed by objective review of the facts of the case, the strengths and weaknesses of the legal issues being addressed, and the potential for success at the appellate level.  It’s never too late to act until your case is submitted!

I have real stories and experiences to share from lawsuits in which our clients and the other law firms we have assisted have been able to save thousands of dollars in litigation costs and, more importantly, in damages awards or forced verdicts because I have been able to step in and make new law, or at least bring the parties together to discuss realistic settlement options.

Please do not hesitate to contact me if you are contemplating an appeal, any appeal.