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Workers' Compensation

You’ve Got Mail……And DE Superior Court Affirms IAB Ruling In Insurance Coverage Case

For the background, check out my post of 9/6/11, titled A Different Kind of Miracle on 34th Street…. And DE IAB Makes Postage Law.  This case had to do with the issue of a work comp policy which had lapsed, with a reinstatement check being mailed on January 12, 2010; the claimant was seriously injured on January 15, 2010, which was after the premium payment check was mailed and prior to the payment‘s processing by Liberty Mutual on January 19, 2010 (noting that January 18 was a public holiday).  The issue under consideration was “what is the effective date of the renewed policy?”

Chronologically, Liberty Mutual’s was not the premium check’s first destination.   Liberty insureds are directed to mail the premium check to a lockbox in Philadelphia, which is swept by a courier several times a day, which operation ceases at 1:00 p.m. to allow for internal processing by Citibank.  Thus any payments picked up after 1:00 p.m. would likely be stamped with the date of the next business day.  The amputation injury which is the subject of this analysis occurred Friday January 15, which was also deemed by the Board to be the likely date of receipt by the Citibank lockbox of the insured’s premium check.  Of note, a Liberty Mutual claims supervisor testified that the premium check is not stamped with the date it hits the lockbox, only the date the check is processed.

In finding in favor of coverage for City Window, the Board ruled:

·   The premium check most likely was received to the lockbox on January 15 (a Friday) and stamped with the next business day date of January 19 (a Tuesday following a Monday public holiday).

·   A meter mark is the same as a U.S. postmark for purposes of mailing.

·   The DE Workers Compensation Insurance Plan Handbook provides an applicable rule for this circumstance.

·   Based on this handbook, the period of lapse covers January 1, 2010 to January 12, the date of the postmark.

·   The policy was deemed reinstated as of 12:01 a.m. the next day, January 13, 2010.

Liberty Mutual appealed the Board’s decision. In the interest of liberty, justice and clean windows for all, I give you Liberty Mutual Insurance Company v. Jesus Silva-Garcia and City Window Cleaning of DE, Del. Super., 13A-01-002 (RBY) (August 22, 2013).  The Superior Court affirmed the IAB’s decision and provides a real bonanza of take-aways:

·   An IAB bond hearing is considered a procedural matter, preliminary in nature, which does not necessarily determine whether there is insurance coverage;  participating in such hearing is not a concession that insurance is lacking if other factors later establish otherwise.

·   The terms “cancellation” and “non-renewal” are synonymous for purposes of a determining a period of lapse as outlined in the DCRB Handbook.

·   The requirement of a U.S. Postmark includes a private meter mark.

And the happy circumstance attributable to the above is that a man missing a leg can now collect his various entitlements under workers’ compensation ( I see 2326 being his lucky number)…..that is, assuming that there are no further appeals.   And should Liberty Mutual file an appeal to the DE Supreme Court?   One might say go ahead…… but you don’t have a leg to stand on…… giving you much in common with Mr. Silva-Garcia.

Irreverently yours,

Cassandra Roberts

    Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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