Author: WorkCompAcademy

Consumer Watchdog, a consumer advocacy group, filed a lawsuit against the California Insurance Commissioner and the California Department of Insurance in April 2025. The lawsuit challenged two bulletins (2024-8 and 2025-4) issued by Lara, which allowed insurance companies participating in the California FAIR Plan to impose surcharges on policyholders to recover costs from wildfire-related assessments.

The FAIR Plan is California’s insurer of last resort, designed to provide fire insurance for those unable to secure coverage in the traditional market, with costs traditionally shared among insurers based on their market share, not passed to consumers.

Consumer Watchdog argued that these surcharges were unlawful, violating the California Administrative Procedure Act (APA) and FAIR Plan statutes. They claimed the bulletins were issued without proper public notice or legislative approval and that the FAIR Plan statute requires insurers, not policyholders, to bear these costs. The lawsuit sought to block the surcharges, declare the bulletins invalid, and require insurers to refund any collected fees.

On July 22, 2025, Los Angeles Superior Court judge, James C. Chalfant, issued a ruling that partially dismissed the case. The court upheld Lara’s authority under Proposition 103 to issue the bulletins, dismissing two procedural claims related to violations of the APA.

However, the judge allowed the core claim – that the surcharges violate the FAIR Plan statute by improperly shifting costs to policyholders – to proceed. This was seen as a significant procedural victory for Consumer Watchdog, ensuring judicial scrutiny of the surcharge scheme.

Insurance Commissioner Lara issued a press release claiming the ruling affirmed his authority to protect consumers and stabilize the FAIR Plan, which Consumer Watchdog in it’s press release called misleading, as the court explicitly allowed the challenge to the surcharges’ legality to move forward.

“The court rejected the Department’s attempt to throw out the core of the lawsuit, finding that Consumer Watchdog may proceed with its claim that the pass-through surcharges violate California’s FAIR Plan statutes. The FAIR Plan is California’s last-resort fire insurance program, and the law requires insurers to share costs equally-not shift them to consumers.”

“This is a significant procedural victory that ensures the Commissioner’s arrangement, which could shift hundreds of millions of dollars from homeowners to insurers will get the scrutiny it deserves,” said William Pletcher, Consumer Watchdog’s Director of Litigation. “California consumers should not be forced to subsidize insurance companies when the law makes clear the amounts must be paid by insurers, not policyholders.”

The case was not fully dismissed; while two procedural claims were dropped, the central challenge to the legality of the FAIR Plan surcharges is ongoing, with Consumer Watchdog continuing to argue that the policy violates state law and harms consumers.

“This ruling means the Commissioner’s legally unsupported surcharge plan will now be tested in court,” said Ryan Mellino, who argued the case for Consumer Watchdog. “The law doesn’t allow insurers to profit from the FAIR Plan while pushing their losses onto the people they’re supposed to insure. This fight is just beginning – and we intend to prove in court that the Commissioner’s plan isn’t just unlawful, it’s a betrayal of the very consumers he’s supposed to protect.”

The American Property Casualty Insurance Association supported Lara, arguing that blocking the surcharges could destabilize the insurance market, while Consumer Watchdog maintained that the surcharges unfairly burden consumers and protect insurer profits.

The California Attorney General announced a nearly $2 million settlement with CleanNet USA, Inc. and its four California Area Operators resolving an investigation by the Attorney General’s Office, which found that some of CleanNet’s janitorial franchisees were misclassified as independent contractors under CleanNet’s franchising model in violation of state law.

CleanNet USA is a nationwide company that provides janitorial franchising and commercial cleaning services under the “CleanNet” brand name and grants franchising rights to its California Area Operators, who sell CleanNet unit franchises to individuals and entities in California and enter into franchise contracts with these unit franchisees.

After the payment of an initial franchise fee, CleanNet assigns cleaning services contracts to unit franchisees, who then provide cleaning services for CleanNet’s customers. As a result of CleanNet’s unlawful misclassification of certain individual franchisees who personally performed cleaning work, these workers were denied the protections of California’s employment laws, such as the right to minimum and overtime wages, regular meal and rest periods, reimbursement of business expenses, and accurate and itemized wage statements, and were further subjected to unlawful deductions from their wages.

Under the settlement, CleanNet will pay $1,700,000 in restitution and $150,000 in civil penalties and comply with injunctive terms requiring it to cease its misclassification of certain cleaners, notify all former and current workers of the settlement, and undergo monitoring for three years, among other terms.

Misclassification of workers occurs when an employer improperly classifies their employees as independent contractors so that they do not have to pay payroll taxes, minimum wage or overtime, or comply with other wage and hour law requirements such as providing meal periods and rest breaks. “Employees,” unlike “independent contractors,” are entitled to a wide range of rights, benefits, and protections under California law, including workers’ compensation coverage if injured on the job, the right to family leave, unemployment insurance, the legal right to organize or join a union, and protection against employer retaliation. As courts across the country have found, the use of a franchising business model does not shield companies who use these models to misclassify their workers from liability.

Under the settlement, CleanNet USA and its four California area operators, CleanNet of Southern California, Inc. (DBA CleanNet of Southern California), D&G Enterprises, Inc. (DBA CleanNet of the Bay Area), Paqnet, Inc. (DBA CleanNet of San Diego), and FCDK, Inc. (DBA CleanNet of Sacramento), (collectively, CleanNet) will change their franchising business model, pay civil penalties, and provide restitution to their cleaners for the losses the cleaners incurred due to their unlawful deductions, failure to reimburse cleaners for their supplies, and failure to pay at least the minimum wage for all hours worked. All current and former cleaners will be notified by CleanNet with next steps to claim restitution.

Additionally, CleanNet will preserve all documents and records necessary to demonstrate its compliance with the terms of the stipulated judgment and make those records available to the California Department of Justice for at least three years. CleanNet will also provide training to all current and future cleaners as part of a mandatory initial certification program to ensure that all cleaners understand their duties as employers when they hire other workers to perform cleaning work for CleanNet’s customers, and that they are aware of the liabilities and risks associated with misclassifying their own employees as independent contractors. The franchise will also remove a clause from its template customer service agreement that restrains employee mobility.

California Insurance Company provided worker’s compensation insurance to businesses. Eighty-five percent of its business is in California. In 2011 it patented a “Reinsurance Participation Agreement” (RPA). The RPA was designed to allow an insurer to offer a retrospective rating policy to small and medium-sized companies. The RPA would accomplish this by having an employer take out a guaranteed cost policy, then the insurer would cede some of the insured risk to a reinsurer, such as a captive reinsurer, together with a portion of the premium. The reinsurer would then enter into a side agreement with the policyholder to cede some of that risk back to the policyholder. At the end of the policy period, the reinsurer would refund some of the premiums to the policyholder if the losses were lower than expected or charge the policyholder more if the losses were higher.

Under a program called EquityComp, CIC followed this template and issued guaranteed cost policies that had been submitted to the rating organization for the commissioner’s approval. CIC had its affiliate, Applied Underwriters Captive Reinsurance Assurance Company (AUCRA), reinsure some of the risk and issue the side agreements to the policyholders, which were not submitted for the commissioner’s approval.

Beginning in 2012, 68 EquityComp policyholders filed various claims or actions challenging the RPA. In a 2016 ruling in one of those challenges, the commissioner found that the RPA constituted a misapplication of CIC’s filed rates in violation of Insurance Code § 11737. (Matter of Shasta Linen Supply, Inc., Insurance Commissioner (June 22, 2016) No. AHB-WCA-14-31 (Shasta Linen).) The decision declared that CIC’s failure to file and secure approval of the RPA as required by section 11658 rendered it void as a matter of law. CIC petitioned for review of Shasta Linen in Los Angeles Superior Court, and in 2017 the parties settled their dispute. The parties agreed they had a good faith dispute about whether the RPA was void as a matter of law and the remedy authorized by the Insurance Code. A recital to the agreement stated that this dispute was “ultimately for the courts to decide.”

Litigation on the other RPA claims and actions policyholders had filed against CIC continued in California courts, federal courts, administrative proceedings before the commissioner, and in arbitration. CIC succeeded in defeating class certification motions. (E.g., National Convention Services, LLC v. Applied Underwriters Capital Risk Assurance Co. (S.D.N.Y. July 27, 2019, No. 15cv7063) 2019 WL 3409882, at *1; Shasta Linen Supply, Inc. v. Applied Underwriters, Inc. (E.D.Cal. Apr. 17, 2019, Nos. 2:16-cv-158-WBS AC, 2:16-cv-1211 WBS AC) 2019 WL 3244487, at *2.) One federal court granted CIC and its affiliates summary judgment on claims that the RPA violated the Unfair Competition Law because it was void. (Pet Food Express, Ltd. v. AUI (E.D.Cal. Sept. 12, 2019, No. 2:16-cv-01211 WBS AC) 2019 WL 4318584, at *2, *4.)

As of January 2019, Berkshire Hathaway, Inc. (Berkshire Hathaway) indirectly owned 81 percent of CIC and its affiliates. Berkshire Hathaway agreed that month to sell its shares to Steven Menzies, CIC’s president and chief operating officer, who already owned 11.5 percent of the company. The agreement allowed Berkshire Hathaway to retain a $50 million breakup fee if the transaction did not close by September 30, 2019.

In April 2019 Menzies submitted an application to the department for approval of the transaction. After the commissioner found Menzies’ first two applications insufficient Menzies submitted a third on September 7, 2019. The department informed CIC that it could neither approve nor disapprove CIC’s application by September 30. Berkshire Hathaway required $10 million for an extension of the transaction deadline until October 10, 2019.

Menzies then proposed and the New Mexico Office of the Superintendent of Insurance agreed to hold an expedited approval process to re-domesticate CIC in New Mexico by merging CIC into a newly formed New Mexico corporation, CIC II. The New Mexico superintendent approved the merger, conditioned on the stock transactions between Menzies and Berkshire Hathaway closing by October 10, 2019.

CIC II satisfied the New Mexico superintendent’s conditions for approval, so the merger of CIC with CIC II would be completed by filing a certificate of merger with the California Secretary of State. (Corp. Code, § 1108, subd. (d).) On October 22, 2019, the department asked CIC by telephone not to file the certificate of merger with the California Secretary of State so that the parties could meet and resolve their issues. CIC agreed, but the parties never met.

On November 4, 2019, without notice to CIC, the commissioner filed an ex parte application to be appointed conservator of CIC. In January 2020, CIC unsuccessfully moved to vacate the conservatorship. CIC II and an affiliate of CIC filed federal actions seeking to vacate the conservatorship and enjoin it. (Applied Underwriters, Inc. v. Lara (E.D.Cal. 2021) 530 F.Supp.3d 914; California Ins. Co. v. Lara (E.D.Cal. 2021) 547 F.Supp.3d 908.) The district courts dismissed both suits, and the Ninth Circuit Court of Appeals affirmed. (Applied Underwriters, Inc. v. Lara (9th Cir. 2022) 37 F.4th 579, 600.)

In October 2020, the commissioner filed an application for approval of a rehabilitation plan, which would end the conservatorship. CIC opposed the settlement provision in section 2.6 of the plan. The trial court approved the plan in April 2024. CIC appealed and also filed a petition for writ of mandate challenging the approval of the plan. This court summarily denied the petition in a one-paragraph order, noting that CIC had failed to demonstrate that its remedy on appeal was inadequate. (Cal. Ins. Co. v. Superior Court (June 20, 2024, A170573).)

With regard to the CIC appeal, the Court of Appeal found no merit in any of CIC’s arguments and affirmed the trial court’s order in the published case of Insurance Commissioner of the State of California v. California Insurance Company et al. – A170622 (July 2025)