#subrogation
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Who’s on First – Defense and/or Indemnity
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Insurer v. Insurer Disputes Should be Resolved by Mediation Rather Than Litigation
Post 4717
In an insurance coverage dispute that arose out of the tragic death of an employee on a construction site the Fifth Circuit was called upon to determine which insurer was obligated to deal with the claims of the family of the deceased employee because the insurers could not agree.
In Gemini Insurance Company v. Indemnity Insurance Company of North America, No. 23-20026, United States Court of Appeals, Fifth Circuit (January 12, 2024) the court dealt with the coverage disputes over which insurer is obligated to defend and or indemnify which person or entity.
BACKGROUND FACTS
ExxonMobil Corporation (“Exxon Mobil”) retained Bechtel Oil, Gas, and Chemicals, Inc. (“Bechtel”) as a general contractor to build a new hydrocarbon processing facility in Beaumont, Texas (the “Project”). As part of its contract with Bechtel, Exxon Mobil implemented an Owner Controlled Insurance Program (“OCIP”), which provided workers’ compensation and employers’ liability coverage to Bechtel and all of its subcontractors. Bechtel retained Echo Maintenance, L.L.C. (“Echo”) as a subcontractor to perform mechanical, structural, and piping work on the Project. Bechtel and Echo subsequently entered into a contract that incorporated the OCIP and required Echo to enroll in the program (the “Subcontract”). Both Bechtel and Echo were enrolled in the OCIP.
Indemnity’s Workers’ Compensation and Employers’ Liability Policies Issued Under The OCIP
Under the OCIP, Indemnity Insurance Company of North America (“Indemnity”) issued a workers’ compensation and employers’ liability insurance policy to Bechtel (“OCIP Policy”). Separately, Gemini Insurance Company (“Gemini”) issued a general commercial liability policy to Echo under which Bechtel was an additional insured.
Part Two the OCIP Policy sets forth the type of covered claim that Indemnity agreed to defend and indemnify Bechtel. The OCIP contained a VCEL Endorsement whose first provision explains that the endorsement “adds Voluntary Compensation Insurance to the policy,” and that the insurance applies to bodily injury by accident so long as it is “sustained by an employee included in the group of employees described in the Schedule” and “arise[s] out of and in the course of employment necessary or incidental to work in a state listed in the Schedule.”
Employers’ Liability Insurance
It defines “State of Employment” in relevant part as “Texas but only at the site indicated in the designated premises endorsement.”
Underlying Incident and Lawsuit
In December 2017, Ms. Espinoza was working as a pipefitter helper on the Project when she was struck by a piece of pipe and sustained fatal injuries. In response to the suit brought by her heirs, Bechtel sought coverage as an additional insured on the commercial general liability policy issued by Gemini to Echo and received a defense from Gemini under a reservation of rights.
Bechtel moved for summary judgment on the heirs suit because Exxon Mobil’s OCIP provided blanket workers’ compensation insurance and coverage to Bechtel and Echo, Intervenors’ sole remedy in accordance with Texas Labor Code was workers’ compensation benefits. The state court granted Bechtel’s motion for summary judgment.
DISCUSSION
The main issue was whether Ms. Espinoza was an “employee” of Bechtel within the terms of the OCIP policy. Reading the VCEL Endorsement together with Part Two, the Fifth Circuit concluded that the only reasonable interpretation was that the VCEL Endorsement expanded the definition of a Bechtel “employee.” The ordinary meaning of “employee” is someone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance. The Fifth Circuit concluded that the VCEL Endorsement expanded the OCIP Policy’s definition of “employee” to include employees of Bechtel’s subcontractors, such as Ms. Espinoza.
THE DUTIES TO DEFEND AND INDEMNIFY
Duty to Defend
Ms. Espinoza was an employee of Echo, but also simultaneously working for Bechtel at the designated premises, thus satisfying the VCEL Endorsement. Ms. Espinoza was killed while working in the scope of her employment. The allegations, construed liberally, constitute a claim potentially within the OCIP policy. As a result Indemnity had a duty to defend Bechtel in the Underlying Litigation.
Duty to Indemnify
There is no dispute that Ms. Espinoza was an Echo employee, that Echo was a subcontractor of Bechtel, that Bechtel and Echo had a written contract, and that the work they performed was on a “designated premises” within the meaning of the OCIP Policy the workers’ compensation OCIP coverage applies. Bechtel “provided” workers’ compensation insurance to Echo when they executed the Subcontract. Accordingly, Indemnity has a duty to indemnify Bechtel as well.
Contractual and Equitable Subrogation
Because the district court concluded that Indemnity did not have a duty to defend or indemnify Gemini, it never addressed the substance of Gemini’s subrogation arguments. The Fifth Circuit reversed the district court’s grant of Indemnity’s motion for summary judgment and remanded the case back to the district court with instructions to:
1 grant Gemini’s motion for summary judgment on Indemnity’s duties to defend and indemnify under the Policy, and
2 consider the subrogation issues in the first instance.
ZALMA OPINION
Insurance policies must be dealt with as an entirety, no matter how extensive or complex. Once the court determined that Ms. Espinoza was an employee it resolved the dispute and found that Indemnity owed defense and indemnity to the defendants. The insurer’s should not have engaged in this litigation but worked out a resolution to the benefit of the insureds with the assistance of a mediator knowledgeable about insurance issues. Failing to do so, after the expenditure of discovery, a summary judgment and an appeal the obvious resulted a case where only one party was happy and there existed a possibility that much would be saved by an agreement between equals.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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#insurance#claims#insurance claims#defense#duty to defend#indemnity#duty to indemnify#subrogation#equity#equitable subrogation#insurance books#amazon
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Microdot, instead of Parent, paid back 400 million debts and made a comeback for five years
Source: k-star-holic.blogspot.com
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lol this lady isn't even a client and she's fucking demanding shit from me and just generally being a condescending bitch. like. ma'am, i understand that you're in a stressful situation, but this is not how you get people to help you out. kindly, go fuck yourself.
#'i need a company that does subrogation. do you know what that means?'#uhhhhhhh yeah i've been working for a PI lawyer for almost fucking 9 years#of course i know what subrogation is bitch#gtfo of here#fucking people man#sometimes i hate them#ignore me#just venting about my chosen profession ugh
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My job would be so much better if no one contacted me at it
#picking up slack while my coworker is out indefinitely for medical reasons could be managable#but unfortunately Every Day I Get Emails and this week theyre all with questions i cant answer#what the fuck is subrogation bitch i’ll kill you
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LOVE working in insurance
watching an aflac commercial going. ah yes. i understand how the benefits will payout. medical first if you get a bat to the face. that’s gonna. hm. THEN dental. because oral. then aflac saves out of pocket
yessss
#i'm stuck in the trash#im LEARNING#coordination of benefits?? i know her#fuck that’s subrogation.#😔#IS IT???#NO#third party wouldn’t be covering?? maybe.#IT COULD BE EITHER#fuck.#if your kid did it to you its COB#idk its disability claims when its aflac and i dont deal with that
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Hi, have you ever heard of this entity?
https://www.scarystudies.com/midnight-man-game/
Would a witch be able to summon it outside of this context and what kind of entity is this? Also, using your own name and dropping blood onto paper what does actually entail?
Easy link to URL
Midnight Man is an urban legend. I suppose that if such an entity does exist, it could be classified as a pop cultural spirit, or perhaps an egrigore.
There is no way for us to know if it is possible to summon Midnight Man outside of this elaborate summoning ritual, until we do the necessary research. When lore dictates that a certain ritual is the correct one to use to summon an entity, it's hubris to assume we can conjure the same spirit using our own, unrelated summoning rituals.
And until you let Midnight Man try to murder you until 3:33 am, then how would you know you conjured the same spookypasta spirit if you used another format? Just because you summon a spooky spirit who promises to kill you doesn't mean you've summoned the actual Midnight Man, if such a creature does actually exist.
Also, you don't even get anything for surviving the ordeal with Midnight Man. You just don't die. This seems like a terrible deal. There are lots of urban legend summoning stories. Have you considered Three Kings, or perhaps the Man in the Fields? Either of those urban legends at least suggests that if you don't die or go permanently insane you'll get wishes, or something.
I mean, even if we're approaching this from a pop-culture witchcraft context, Midnight Man explicitly doesn't like or help people at all, unlike Man in the Fields. So it's hard for me to see this going anywhere even if you want to take the urban legend and transplant him into your personal magical practice.
I'm not sure I understand your question about using your own name. The instructions you linked seem quite clear:
1. Write down your name on a piece of paper. First, middle, and last name. Then put a drop of your blood on the same paper. Let the blood soak in to the paper.
2. Then turn off the lights. All of them. Go to the wooden door and put the piece of paper with your name in front of it. Then light the candle and put it in on top of the piece of paper.
I do sometimes use my blood in rituals. To obtain blood for this purpose, I use sterile diabetic lancets which can be purchased at any pharmacy.
Also, if your aim is to summon a demon who's only goal is to eviscerate you, please let me recommend a more fire-safe option for the setup: Use a candle with a low profile, like a tea light, and place both the paper and the candle in a large, fire-safe cooking pot.
Being hunted by a suspected demon seems like a great setup to kick a real candle and actually burn down your apartment, and doubtless the insurance company would not attempt to subrogate against the Midnight Man.
Best of luck working with creepypasta spirits!
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Subrogation Must be Fair
Insurer May Never Subrogate Against its own Insured
Barry Zalma
Dec 18, 2023
Read the full article at https://lnkd.in/gr645uJf, see the full video at https://lnkd.in/gq2bsTb7 and at https://lnkd.in/g98hJHDV and at https://zalma.com/blog plus more than 4690 posts.
Posted on December 18, 2023 by Barry Zalma
Post 4691
See the full video at and at
Zurich American Insurance et al sued their coinsurers – Appellant Certain Underwriters at Lloyd’s, London Subscribing to Policy Number B12630308616 (Lloyd’s) and Defendant Arch Insurance Company (Arch) – seeking a declaratory judgment that Lloyd’s is barred under New York law from bringing a common law indemnification or contribution claim against a party insured by Zurich, Arch, and Lloyd’s.
The district court granted Zurich’s motion for summary judgment, holding that New York’s anti-subrogation rule precludes Lloyd’s from bringing that claim.
In Zurich American Insurance Company, American Zurich Insurance Company v. Certain Underwriters at Lloyd’s of London Subscribing to Policy Number B12630308616, Arch Insurance Company, No. 22-2697, United States Court of Appeals, Second Circuit (December 12, 2023) the Second Circuit resolved the dispute.
Many Layers of Insurance
This dispute arose from a large construction project at LaGuardia Airport. Pursuant to the contract, Skanska and LGA obtained a Contractors Controlled Insurance Program for the project, which included a “tower” of general liability insurance with $300 million of coverage in three layers. Zurich underwrote the base layer of coverage, Arch provided a first layer of excess coverage, and then Lloyd’s provided a second excess policy, i.e. a third layer of coverage on top of Arch’s.
Each layer of coverage, including Lloyd’s, contains a standard employer’s liability exclusion. Zurich agreed that the general liability insurance policy provided coverage for the suit and arranged for counsel to represent Port Authority and LGA beginning in August 2018. Roughly three years later, Lloyd’s contacted that counsel and requested that LGA and Port Authority commence a third-party claim for common law indemnification or contribution against Skanska. Counsel analyzed the feasibility of such a claim but concluded that New York’s anti-subrogation rule would bar it. After continued disputes between Lloyd’s, Zurich, and counsel for each, Zurich commenced this action, seeking a declaratory judgment that the anti-subrogation rule would indeed bar the indemnification or contribution claim against Skanska.
The Anti-Subrogation Rule
New York courts have established an anti-subrogation rule that is an exception to an insurer’s usual right of subrogation against third parties. It provides that an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered.
The anti-subrogation rule is needed both to prevent the insurer from passing the incidence of loss to its own insured and to guard against the potential for conflict of interest that may affect the insurer’s incentive to provide a vigorous defense for its insured.
The anti-subrogation rule appropriately prevents an insurer from recouping losses from its insured even where the insured has expressly agreed to indemnify the party from whom the insurer’s rights are derived and has procured separate insurance covering the same risk. The important public policies served by the rule means that the rule takes precedence over the parties’ private contractual arrangements.
Since Lloyd’s insures Skanska under the general liability policy that policy, through the insured contract provision, covers Skanska for the obligation it assumed in the contract to indemnify LGA and Port Authority for losses resulting from third-party claims for bodily injury like the one underlying the present action.
In conclusion the Second Circuit concluded that Lloyd’s cannot subrogate against Skanska — its own insured — for losses arising from the underlying suit that is exactly the risk for which Lloyd’s insured Skanska.
What Lloyd’s proposed is precisely what the anti-subrogation rule prohibits. As a result, straightforward application of the rule bars the claim.
ZALMA OPINION
Subrogation is an equitable remedy where, when an insurer pays a debt owed by its insured, fairness requires the insured to provide the insurer with the insured’s rights against third parties to recoup its payment on behalf of the insured. Regardless, it is unfair for an insurer to seek damages from its own insured because doing so violates the public policy of the state of New York and is, on its face, unfair. When two people are in a simple auto accident but are insured by the same insurer, they will both be paid regardless of who is at fault since the insurer can’t subrogate against its own insured.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to my substack at https://barryzalma.substack.com/publish/post/107007808
Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01
Follow me on LinkedIn: http://www.linkedin.com/comm/mynetwork/discovery-see-all...
Daily articles are published at https://zalma.substack.com.
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Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
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⁇ Parent Debt-to-Equity ⁇ Microdot, Disposal of All Property ⁇ 12 Hours Restaurant Work ⁇ Subrogation Obligation but Payable (Scoop)
Source: k-star-holic.blogspot.com
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I just got a letter from “Carelon Subrogation”, which sounds like the name of the Borg-alike expansionist hivemind species you’d play as in a sci-fi 4X board game. “Oh yeah, don’t pick the Carelon Subrogation. They’re OP but pretty tough for beginners.”
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I'm studying business in school and there's this part about insurance which is called 'Subrogation'
which implies that once the insured is compensated for loss, the damaged property passes on to the insurer
further implying that when someone dies (i don't think this applies to life insurance but just humour me, I'm delulu) and the life insurance is claimed the ownership moves to the insurer
thus, proving that all Vampires are owned by Insurance Companies.
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As you're in the insurance business, what advice can you give on fighting to keep your car from being declared a loss after a collision that was ruled the other driver's fault? Geico is trying to pull this 75% bullshit. They even sent a guy who is obviously new at being an adjuster
I KNEW I HAD AN ASK
so sadly, new york and new jersey are their own beasts, their laws are so stupidly different than the rest of the country you have to take what i say with a grain of salt
so for the sake of ease i'll call this your auto policy.
if it was the other drivers fault, but your insurance is paying for your car, that typically means you filed a claim against your own insurance, and they will go after the other part to collect damaged (the fancy term is subrogation)
if that's whats happened, that's a can of worms you cannot close.
Totally a car is simply that the cost to repair is greater than the actual cash value of the car (this is far lower than you think)
what you can do is:
provide estimates, think of this like a 2nd opinion. i personally highly recommend getting repair estimates before filing a claim
ask for a new adjuster
ask for the manager of the adjuster and ask about the appeal process.
unless theyre specifically claims licenses, don't ask your agent (unless the adjuster is ignoring you), we are locked out of claims stuff almost completely
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A drunk driver hit my car (and a few other cars) last night, which is sooooo cool 🙄 /s
He hit a pregnant lady and her angry stepdad, a guy who lives two hours away and had come up for Thanksgiving, and me, on my way to pick up friend-with-cancer for dinner. The police stuff took about two and a half hours and we finally managed to eat around 9:30 pm.
Called off work and forfeited my holiday pay so I can spend all morning making phone calls to skeleton staffs who won't be able to do anything until Monday at the earliest.
It looks like I won't have my car back for some number of weeks but at least the rental car is affordable. A friend who understands insurance bullshit says I may be able to have it subrogated to the other party, although the cost to me would be about the same anyways.
Although when I called the other guy's insurance, they said they couldn't "determine liability at this time." And while I understand that the rep was required to say that, it's still so 🙄🙄🙄. She also called it "a little fender bender" which. Bruh, there is extensive damage to my car and it's non-drivable. I got hit by a goddamn pickup truck.
Physically and financially I'm fine, emotionally I'm annoyed as shit.
My next two shifts are night shifts that my friend and I signed up for together, and we're going to be betting breakfast after, so I'm looking forward to that.
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