| Commissioners of State Ins. Fund v Hallmark Operating, Inc. |
| 2009 NY Slip Op 02882 [61 AD3d 1212] |
| April 16, 2009 |
| Appellate Division, Third Department |
| Commissioners of State Insurance Fund, Appellant, v HallmarkOperating, Inc., Respondent. |
—[*1] O'Connor, O'Connor, Bresee & First, P.C., Albany (P. Baird Joslin Jr. of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Devine, J.), entered July 14, 2008 inAlbany County, which, among other things, granted defendant's motion for summary judgmentupon submission of the controversy on an agreed statement of facts pursuant to CPLR 3222.
Plaintiff provided workers' compensation insurance for defendant from 1996 through 2001.During 1996, the policy was a retrospective rating plan (hereinafter RRP). Under an RRP,plaintiff retroactively calculates premiums owed based upon injuries that occurred during thepolicy period. Plaintiff then sends the employer periodic bills, generally annually, reflectingbenefit payments made during that subsequent period that relate to claims based upon injuriesexperienced during the policy period. During 2000, the policy was a guaranteed cost plan(hereinafter GCP). Under a GCP, plaintiff collects a premium in a fixed amount, withoutconsidering or adjusting for the employer's claims experience.
One of defendant's employees suffered a work-related injury in 1996, resulting in an awardof workers' compensation benefits. From 1996 through July 2000, plaintiff paid those benefitsand allocated them to the 1996 RRP policy, issuing periodic bills to adjust defendant's premiumsaccordingly. In July 2000, the employee died following surgery. The Workers' CompensationBoard determined that this death was causally related to her compensable injury [*2]and approved a new claim for death benefits filed by her survivingspouse. Plaintiff began paying these benefits and allocating them to the RRP policy. Defendantfailed to pay the premiums associated with the death benefits, asserting that they were payableunder the 2000 GCP policy and that no additional premiums could be collected.
Plaintiff commenced this action seeking payment of the unpaid premiums and collectioncosts. Both parties moved for summary judgment on a stipulated set of facts (see CPLR3222). Supreme Court granted defendant's motion and dismissed the complaint, promptingplaintiff's appeal.
The death benefits claim was payable under the RRP policy. The workers' compensationstatutes are structured to provide separately for disability benefits and death benefits(compare Workers' Compensation Law § 15, with Workers' CompensationLaw § 16; see Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d747, 751 [1995]). Because the right to death benefits does not accrue prior to death (seeMatter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d at 753; Matter of Mace vOwl Wire & Cable Co., 284 AD2d 672, 675 [2001]), the Workers' Compensation Boardassigned the death benefits case a separate claim number from the underlying disability claimand a new date of accident, namely the date of the employee's death. A new date of accident isrequired to calculate accrual of the new death benefits claim for statute of limitations purposes(cf. Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d at 753). While "aclaim for death benefits . . . is a separate and distinct legal proceeding brought bythe beneficiary's dependents and is not equated with the beneficiary's original disability claim"(id. at 751; see Matter of Arena v Crown Asphalt Co., 292 AD2d 743, 746[2002]; Matter of Mace v Owl Wire & Cable Co., 284 AD2d at 675), the character of theadministrative proceedings does not define the contractual relationship between the insured andinsurer under a workers' compensation insurance policy. Nor is death a new injury, but rather anew claim consequentially related to the original injury.
Here, the 1996 accident date was the actual date of loss for both the original injury and thecausally related death. Consistent with statutory definitions, the policies provide coverage for"[b]odily injury includ[ing] resulting death" (see Workers' Compensation Law § 2[7], [8]). Thus, under the policies, the employee's death in 2000 was included as part of her 1996bodily injury and related back to the same date of loss (cf. Matter of House v InternationalTalc Co., 261 AD2d 687, 689 [1999]; Matter of Dravo Corp., 2004 WL 1080879,*5, 2004 NY Wrk Comp LEXIS 10249, *14 [WCB No. 0910 1448, May 7, 2004]). Because thatbodily injury occurred while the RRP policy was in effect, the death benefits claim was payableunder that policy and plaintiff was entitled to summary judgment on its claim to collect thepremiums due under the RRP policy.
Plaintiff was also entitled to collection costs of $24,681.72, representing 14% of the amountowed, which reflected the amount charged by counsel to prosecute the collection matter(see State Finance Law § 18 [5]).
Cardona, P.J., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is reversed, onthe law, without costs, defendant's motion for summary judgment denied and plaintiff's motionfor summary judgment granted.