Brickstreet Mutual Insurance Co. v. Zurich American Insurance Co.
Brickstreet Mutual Insurance Co. v. Zurich American Insurance Co.
Opinion of the Court
MEMORANDUM OPINION AND ORDER (Cross-Motions for Summary Judgment)
Pending before the court is the plaintiff BrickStreet Mutual Insurance Company’s (“BrickStreet”) Motion for Summary Judgment [ECF No. 24] and the defendant Zurich American Insurance Company’s (“Zurich”) Motion for Summary Judgment [ECF No. 26]. For the reasons herein, BriekStreet’s Motion for Summary Judgment is GRANTED and Zurich’s Motion for Summary Judgment is DENIED.
I. Background
This is a declaratory judgment action relating to workers’ compensation insurance coverage as between two insurance companies, BrickStreet and Zurich. The
At the time of Mr. Gutierrez’s accident on January 5, 2012, Taggart was an additional named insured on a policy issued by BriekStreet and a named insured on a policy issued by Zurich.
The BriekStreet policy, which insures EIN and Taggart, states the following: ‘We will pay promptly when due the benefits required of you by the workers compensation law.”
We will not pay more than our share of benefits and costs covered by this insurance and other insurance or self-insurance. Subject to any limits of liability that may apply, all shares will be equal until the loss is paid. If any insurance or self-insurance is exhausted, the shares of all remaining insurance will be equal until the loss is paid.
Id. at 9.
The Zurich policy, which insures Tag-gart, contains identical language as that contained in BrickStreet’s policy: “We will pay promptly when due the benefits required of you by the workers compensation law.” Zurich Policy 30. The Zurich policy also contains an “other insurance” clause identical to that found in the Brick-street policy. Id. at 30-31.
Following Mr. Gutierrez’s accident, he filed a claim for workers’ compensation benefits with BriekStreet. Pursuant to the BriekStreet Policy insuring EIN Resources and Taggart under West Virginia workers’ compensation law, BriekStreet has paid almost $2.4 million in workers’ compensation medical benefits to Mr. Gutierrez and will continue to pay benefits in the future. Casto Aff. 2 [ECF No. 24-4]. BriekStreet does not dispute that its policy covers Gutierrez’s injuries or that it is obligated to pay his workers’ compensation benefits.
The parties filed their Motions for Summary Judgment on June 6, 2016, to which each timely responded and filed replies. The court held a hearing on July 26, 2016. The matter is now ripe for adjudication.
II. Legal Standard
To obtain summary judgment, the moving party must show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict” in his or her favor. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).
III. Discussion
To resolve the question of whether Zurich is obligated to share equally in the burden of paying workers’ compensation benefits to Gutierrez, I look first to Zurich’s policy to determine if it covers the claims at issue. I then consider how the Brickstreet and Zurich policies operate in tandem; specifically, I weigh whether a dual employment scenario affects workers’ compensation obligations. Thereafter, I turn to the issue of contract priority in the current dispute. Finally, I briefly examine the West Virginia workers’ compensation administrative scheme and its role in apportioning insurance companies’ contractual obligations to pay claims. Before proceeding, I note that neither party asserts, nor do I find, that there are any genuine issues of material fact; the disputes are purely legal.
As to the initial question of coverage, the parties do not dispute that Tag-gart was a named insured under Zurich’s workers’ compensation liability insurance at the time of Gutierrez’s accident. The parties do, however, dispute whether Gutierrez’s workers’ compensation claim is covered under Zurich’s policy.
Zurich presents inconsistent arguments as to whether its policy covers Mr. Gutierrez’s workers’ compensation claim. In its Memorandum in Support of its Motion for Summary Judgment, Zurich acknowledges that it provided workers’ compensation coverage to “actual” Taggart employees, but it denies “that there is any scenario where [Zurich] provided workers’ compensation coverage to Taggart for individuals working for it through a PEO, including Gutierrez.” Zurich Mem. 4-r5. Yet, at the hearing, Zurich identified precisely such a scenario and suggested that there is coverage, but it is only “triggered by [EIN] not having coverage in place that they are obligated to provide.” Hr’g Tr. 46:6-7; see also id. at 41:8-11; Zurich Supp. Mem. 5 [ECF No. 39] (arguing that “coverage under the policy was never triggered” because, among other reasons, “EIN fulfilled its contractual obligation to obtain workers’ compensation coverage for all Work-site Employees, such as Gutierrez”).
Furthermore, Zurich fails to identify anything in the policy that would limit or qualify coverage such that Zurich’s policy would cover workers’ compensation benefits for only certain categories of employees. Based on the plain language of the insurance policy, Zurich’s coverage is coextensive with Taggart’s workers’ compensation obligations under West Virginia law. Zurich points to nothing in West Virginia’s workers’ compensation statute to suggest that Taggart—and thereby Zurich—is not obligated to cover Gutierrez’s workers’ compensation claims.
The crux of Zurich’s argument appears to be that the PEO contract is capable of eliminating Taggart’s workers’ compensation obligations under West Virginia law.
Additionally, although Zurich consistently avoids characterizing Mr. Gutierrez as an employee of Taggart alone, it admits Mr. Gutierrez was a “ ‘covered employee of EIN and Taggart Site Services pursuant to W.Va. Code section 83-46A-2(c)’” and pursuant to “the PEO agreement which existed between Taggart Site Services and EIN.” Zurich Mem. 2. Section 33-46A-2(c) of the West Virginia Code defines “covered employee” as a “person employed by a client employer for whom certain employer responsibilities are shared or allocated pursuant to a PEO agreement.” Here, Taggart is the client-employer,
The West Virginia workers’ compensation statute does not address how it should operate in a dual employment scenario. Section 33-46A-7 of the West Virginia Code contemplates workers’ compensation, but it does not expressly eliminate or alter workers’ compensation obligations. To the contrary, § 33-46A-7 expressly states that, to the extent responsibility to obtain workers’ compensation coverage is allocated to the PEO, “the provisions of [§ 23-2-7] may not be abrogated by a PEO agreement and the client-employer shall at all times remain ultimately liable under [Chapter 23] of this code to provide workers’ compensation coverage for its covered employees.” W. Va. Code § 33-46A-7(b)(1). The referenced section, § 23-2-7, states: “No employer or employee shall exempt himself from the burden or waive the benefits of this chapter by any contract, agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro tanto void.” W. Va. Code, § 23-2-7. I can find no statutory provision that would somehow eliminate or reheve Taggart of its obligation to provide workers’ compensation benefits as an employer of Gutierrez.
Accordingly, I FIND that Taggart was Mr. Gutierrez’s employer under the West Virginia’s workers’ compensation statute, and Zurich is thus bound by the terms of its policy to cover Taggart’s obligation to provide Mr. Gutierrez with workers’ compensation benefits.
b. Priority of Coverage
Next, I must determine how these two policies relate to one another. BrickStreet argues that the policies’ “other insurance” clauses control and the coverage of the relevant claims must be shared equally. Zurich argues that BrickStreet’s policy is primary based on West Virginia statutes and regulations governing PEO agreements and the specific PEO agreement in this case.
I begin with the proposition that “other insurance” clauses are generally valid and enforceable under West Virginia law. See Horace Mann Ins. Co. v. Gen. Star Nat. Ins. Co., 514 F.3d 327, 330-31 (4th Cir. 2008). “Generally speaking, in cases where the other-insurance clauses can be reconciled, the clauses will be enforced in accordance with their terms.” Id. at 331. Additionally, it is a “well-settled principle” of West Virginia contract law that the court must “apply, and not interpret, the plain and ordinary meaning of an insurance contract in the absence of ambiguity or some other compelling reason.” Payne v. Weston, 195 W.Va. 502, 466 S.E.2d 161, 166 (1995); see also Wellington Power Corp. v. CNA Sur. Corp., 217 W.Va. 33, 614 S.E.2d 680, 684 (2005) (“[A] valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation.”) (citation omitted). The court may only consider extrinsic evidence when the contract in question is ambiguous. Payne, 466 S.E.2d at 166.
Here, there is nothing ambiguous about the “other insurance” clauses, which provide that where benefits and costs are covered by “other insurance or self-insurance ... all shares will be equal until the loss is paid.” BrickStreet Policy 8; Zurich Policy 30. Accordingly, I have no occasion to look to the PEO agreement between Taggart and EIN or the PEO statute for evidence of the parties’ intent.
The only reason I might look to West Virginia’s statutory and regulatory provisions regarding PEOs is to determine whether the “other insurance” clauses are expressly forbidden or otherwise against public policy. See Wellington, 614 S.E.2d at 686 (noting that freedom to contract is not unfettered and contracts cannot take a form “expressly forbidden by law” and may be voided as violating public policy). The “judicial power to declare a contract void as contravening sound public policy is a ‘very delicate and undefined power,’ and should be exercised only in cases free from doubt.” Id. (quoting Barnes v. Koontz, 112 W.Va. 48, 168 S.E. 719 (1932)) (internal citations omitted). West Virginia’s “public policy favors freedom of contract which is the precept that a contract shall be enforced except when it violates a principle of even greater importance to the general public.” Id. at 685.
I find that the “other insurance” clauses do not conflict with applicable law governing PEOs or workers’ compensation. Potentially relevant are § 33-46A-7 of the West Virginia Code and § 85-31-6 of the West Virginia Code of State Rules. As discussed above, § 33-46A-7(a) states “[t]he responsibility to obtain workers-’ compensation coverage for covered employees in compliance with all applicable law shall be specifically allocated in the professional employer agreement to either the client-employer or the PEO.” Nothing in this provision precludes both parties from obtaining coverage above and beyond the specific allocation of responsibility in a PEO agreement. In fact, the section goes on to state that a PEO agreement cannot abrogate the workers’ compensation statutory rule that no employer can contractually exempt himself from his workers’ compensation burdens, and the “client-employer shall at all times remain ultimately liable ... to provide workers’ compensation coverage for its covered employees.” See W. Va. Code § 33-46A-7(b)(l) (referencing W. Va. Code § 23-3-7). Finally, the statute fails to delineate one party’s workers’ compensation policy as primary to the other in the event that both a PEO and client-employer obtain coverage. Accordingly, § 33-46A-7 has no effect on the priority of the insurance policies.
Section 85-31-6 of the West Virginia Code of State Rules is potentially relevant to the question of priority and may have been controlling in the absence of the valid and enforceable “other insurance” clauses in this case. Subsection 85-31-6(3) states in pertinent part; “If on the relevant date of injury there is both a PEO workers’ compensation policy in effect and a direct purchase policy in effect, the following shall apply: If claimant is a covered employee, then the PEO policy shall be the primary policy.” W. Va. Code. R. § 85-31-6(3)(a). Yet the next subsection .qualifies that “[u]nder no circumstances shall this section be interpreted to have any legal effect on the terms, conditions or legal rights as between a private carrier, PEO and client
Accordingly, I find no conflict between § 85-31-6 and the “other insurance” clauses stating the parties’ intent to share equally in their coverage obligations.
I FIND that the unambiguous and reconcilable “other insurance” clauses contained in BrickStreet and Zurich’s respective worker^’ compensation insurance policies are controlling on the issue of priority.
c. Administrative Framework
Finally, Zurich argues that because there is allegedly no mechanism within the West Virginia workers’ compensation system to apportion insurance companies’ obligations to pay claims, BriekStreet - and Zurich cannot share the burden of paying Mr. Gutierrez’s claims. See, e.g., Resp. to BriekStreet Mot. 6 (arguing that the legislature created an “all or nothing” system and an employer “cannot simply argue that it has only partial responsibility for paying a claim”).
I have already rejected the similar argument that BriekStreet was obligated to proceed through the administrative framework in seeking contribution from Zurich in my Order denying Zurich’s Motion to Dismiss. Order, Aug. 13, 2015 [ECF No. 13] (“a declaration of insurance coverage is not integrally related to the operation of West Virginia’ workers’ compensation system”). I do not change my position here.
IV. Conclusion
In summary, I FIND that Zurich’s insurance policy provided workers’ compensation coverage for the injuries Mr. Gutierrez sustained on January 5, 2012, while working for' Taggart and EIN pursuant to a PEO agreement. Moreover, I FIND that the unambiguous and reconcilable “other insurance” clauses in the Zurich and BriekStreet policies must be enforced according to their terms, such that Zurich and BriekStreet must share equally in the coverage burden.
BrickStreet’s Motion for Summary Judgment [ECF No. 24] is GRANTED and Zurich’s Motion for Summary Judgment [ECF No. 26] is correspondingly DENIED. Accordingly, the court GRANTS the relief sought in Brick-Street’s Complaint and DECLARES that the defendant Zurich is obligated to share equally in the burden of paying workers’ compensation benefits to Mr. Gutierrez for injuries he sustained in a workplace injury on January 5, 2012; Zurich must reimburse BriekStreet for half of the amount of workers’ compensation benefits Brick-Street has already paid to Mr. Gutierrez and share equally going forward.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
. While Brickstreet states that Mr. Gutierrez was an employee of Taggart, Zurich is careful to qualify that characterization. For example, Zurich refers to EIN and Taggart as "co-employers” of Gutierrez, Zurich Mem. 1, or states that he was a “covered employee” of EIN and Taggart pursuant to § 33-46A-2(c) of the West Virginia Code. Id. at 2. As discussed below, this distinction is ultimately not dispositive of the issues in the case.
. According to BriekStreet, "[t]he whole point of a PEO is to take off of an employer certain of the HR burdens.” Hr’g Tr. 9:16-17, July 26, 2016 [ECF No. 44],
. The Zurich policy insures Taggart's parent company, Taggart Global USA, LLC, Taggart, and a number of other subsidiaries. Zurich Policy 13 [ECF No. 24-1].
. The policy’s information page lists the insured as "EIN Resources LLC ELF Taggart Site Services Group.” "Taggart Site Service Group” is also listed as an "additional named insured.” BriekStreet Policy 1-2.
. Brickstreet suggests that it will subtract from this amount "subrogation payments received by BrickStreet.” I need not weigh in on the appropriateness of the precise calculations of the equally shared, payments, and I have not been asked to do so.
. For example, Zurich suggests that Taggart's responsibility to provide Mr. Gutierrez workers’ compensation benefits is derived from the PEO agreement. Hr'g Tr. 56:4-12 ("And if there was something in the PEO agreement that made Taggart also responsible for providing him that benefit, then they would have spelled that out in the PEO.”); see also Zurich Supp. Mem. Law 5 ("Taggart was not required, by law, to pay workers’ compensation benefits to Gutierrez.”).
. In its Supplemental Memorandum of Law in Support of its Motion for Summary Judgment, Zurich cites to dicta in a case involving temporary employment agencies to support its claim that an employer can somehow alter or discharge its workers’ compensation obligations through a contractual agreement. Zu
.At times, Zurich appears to conflate the question of priority with the threshold question of coverage. In their briefings, Zurich focuses primarily on priority, suggesting that its policy was not primaiy and therefore there was no coverage.
. Zurich conceded that, looking solely at Zurich's insurance contract without reference to the PEO agreement, Zurich’s policy covers Gutierrez's accident. See Hr’g Tr. 29:18-22.
. According to § 33-46A-2 the West Virginia Code, " 'Client-employer' means an employer who enters into a professional employer agreement with a PEO.” Based upon the PEO Agreement between EIN and Taggart, Taggart plainly qualifies as a client-employer.
. Also of import is Taggart’s assertion in a related proceeding that it was entitled to statutory immunity from Gutierrez’s claims under § 23-2-6 of West Virginia’s workers’ compensation statute, as "an employer in good standing.” Zurich Mot. Ex. C, at 1-2 [ECF No. 26-3],
. Taggart also admits the factual allegation in the state court complaint that "[a]t all times material herein, including January 5, 2012, Plaintiff [Mr. Gutierrez] was working on behalf of Defendant Taggart Site Services as an ironworker at the River Load-Out Facility.” Ex. A, Zurich Mot., Compl. ¶ 23, Circuit Court of Ohio County, West Virginia, No. 12-c-407 [ECF No. 26-1]; Taggart’s Answer ¶ 23.
. Zurich spends considerable space discussing the PEO agreement and how it should be interpreted. See Zurich Mem. 5-8; Zurich Resp. 1-5 [ECF No. 35]. It argues the PEO statute is evidence of the parties' intent in drafting the PEO agreement. This emphasis is misplaced; at issue are the terms of the insurance contracts, not the PEO agreement. Zu
. In its Motion for Summary Judgment, Zurich argues only that these regulations are relevant to the PEO agreement—not the insurance contract-—-and, even there, Zurich suggests only that these sources are relevant evidence of intent, not of contravening public policy. When probed at the hearing on the Motion for Summary Judgment to focus on the insurance contracts, counsel for Zurich stated that the court must look to applicable law surrounding the existence of the contract and suggested that § 33-46A-7 dictates that one policy is primary to the other. Hr'g Tr. 42:17-43:12.
. Zurich also claims that Brickstreet is attempting to circumvent the workers’ compensation administrative framework because the two-year statute of limitations has passed. Because the instant dispute need not—indeed, cannot—be handled through the administrative framework, the statute of limitations argument is without merit.
Reference
- Full Case Name
- BRICKSTREET MUTUAL INSURANCE COMPANY v. ZURICH AMERICAN INSURANCE COMPANY
- Status
- Published