Category: Daily News

Walmart claims in Arkansas state court that 45 of the nations largest insurers wrongly refused to cover losses incurred as a result of defending itself against more than 2,400 opioid lawsuits. Jurisdiction in Arkansas is claimed because Walmart is headquartered in Bentonville, Arkansas, and the parties conduct business in Arkansas, including the Insurers selling insurance to Walmart in Benton County, Arkansas.

This action involves nearly 200 insurance policies spanning two decades, and many of those policies are dozens or hundreds of pages long.

According to the Complaint they failed, they allege that Walmart has paid millions of dollars to 45 Defendant Insurers – many of the nation’s leading insurance companies – for broad general liability policies designed to protect Walmart against potential risks to its business.

They say those risks have now manifested themselves in the form of more than 2,400 Opioid Lawsuits that have been filed against Walmart. Those lawsuits seek damages because of, among other things, bodily injuries allegedly arising out of opioids or opioidcontaining products that Walmart sold, distributed, or dispensed.

Walmart claims it has spent tens of millions of dollars defending itself against the Opioid Lawsuits and expects to spend much more in the future. Walmart timely notified the Insurers of each of the Opioid Lawsuits. But now they say “the Insurers have turned their backs, providing a litany of excuses why the policies supposedly do not cover the Opioid Lawsuits.”

“Those excuses are meritless, as Walmart has repeatedly explained to Insurers, yet they continue to refuse to live up to their obligations under the policies.” And they go on to claim that “the underlying Opioid Lawsuits seek damages sufficient to exhaust all layers of coverage provided by Insurers’ Policies.”.

“Insurers have either reserved their rights to deny coverage, denied their duties to defend or indemnify, and/or otherwise failed to acknowledge their obligations to provide coverage for the Opioid Lawsuits on a series of baseless grounds.”

“For example, certain Insurers have asserted that these lawsuits are not brought “because of bodily injury,” despite complaints and settlements expressly stating otherwise and making clear that the underlying plaintiffs’ alleged damages are because of alleged injury and death to hundreds of thousands of individuals as a result of opioid abuse and addiction.”

“Certain Insurers have also asserted that coverage for the Opioid Lawsuits is excluded because the damages at issue in them were “expected or intended,” even though these lawsuits include numerous allegations of negligent or otherwise unintentional conduct or injuries, many of the settlements are expressly based on negligent conduct, not intentional harm, and Walmart has vehemently denied that it intended or expected to harm anyone.”

Many of the Policies are “primary” or first-level policies, meaning that they obligate the issuing Insurers to defend or to pay for Walmart’s defense and to indemnify Walmart either from the first dollar spent, or once a self-insured retention is satisfied. Those policies were issued by Defendants National Union, American Home, and the Insurance Company of the State of Pennsylvania.

Other Policies are umbrella or excess-layer policies, which, among other things, obligate the issuing Insurers to defend or to pay for Walmart’s defense costs and/or to indemnify Walmart for settlement or judgment costs when those costs exceed specified retention amounts or amounts of coverage available under lower-layer Policies or when coverage is not available or not collectible from such lower-layer Policies. The umbrella and excess-layer Policies were issued by various Insurers.

Andrew Glick claimed injury to his left knee, lumbar spine, neurological system, and “ophthalmology/vision/eye,” while employed as a truck driver by Knight-Swift Transportation Holdings, Inc. when he was injured on November 26, 2018.

Glick was struck by a motor vehicle while crossing the street. The vehicle was traveling at approximately 30 miles per hour at the time of impact, and he was thrown approximately 10 feet, landing on the ground on his left side. Glick was knocked unconscious, and was transported by ambulance to Riverside Community Hospital, where he was diagnosed as having sustained a fractured left tibia, left fibula, left femur, right scapula, right clavicle, right and left temporal bones, L1 vertebrae, L2 vertebrae, L3 vertebrae, L4 vertebrae, and a left “brain bleed.”

On June 9, 2020 the Qualified Medical Evaluator (QME) in Physical Medicine and Rehabilitation noted his “number one problem” was vision difficulty:” The report said that “He was told he has nerve damage behind the right eye, so if he drives or does activities requiring any kind of balance or proprioception, he closes the right eye and only uses the left.” Mr Glick remained temporarily totally disabled.

A QME in ophthalmology reported in August 2020 that he was “not yet permanent and stationary, and required a strabismus (eye muscle) surgery to address superior oblique palsy, because “[t]he function of the 4th nerve cannot be restored.”

After an Expedited Hearing on the issue of whether Mr. Glick was entitled to temporary disability continuing from the last date paid of approximately 11/24/20 and continuing, pursuant to the applicability of Labor Code § 4656 (c)(3)(F), the WCJ issued his F&A, finding that Glick sustained injury to the “ophthalmology/vision/eye,” caused by a “high velocity impact,” resulting in “temporary total disability for which defendant has paid 104 weeks and which said benefit is ongoing.” The WCJ found defendant liable for ongoing temporary total disability pursuant to Labor Code section 4656(c)(3)(F).

Reconsideration of this Award was denied in the panel decision of Glick v Knight-Swift Transportation Holdings, Inc – ADJ11799924 (November 2022).

The WCJ filed his Report, observing that the statutory requirements were met because applicant sustained a high velocity impact to his person, which was the direct cause of both a concussion and a resulting eye injury.

The employer contended that the “plain language or common meaning” of the term “high-velocity eye injuries,” as set forth in Labor Code section 4656(c)(3)(F) refers to “at least some impact of the eye.” And cites as authority Cruz v. Mercedes-Benz of San Francisco (2007) 72 Cal. Comp. Cases 1281 [2007 Cal. Wrk. Comp. LEXIS 247] (Appeals Bd. en banc), were the WCAB applied a “common sense and ordinary meaning” to the term “amputation,” and that a similar analysis of section 4656(c)(2)(F) requires there be “some impact to the eye.”

Andrew Glick cites Glover v. ACCU Construction (June 15, 2009, ADJ665716 (BAK 0154393) [2009 Cal. Wrk. Comp. P.D. LEXIS 301] Glover was operating a mulching mower when he was struck by a metal fragment that entered his nostril, lacerating the nose and fracturing the eye socket before traveling through the brain and lodging in the back of the skull. In Glover the panel concluded “We are not persuaded that “eye” should be defined so narrowly, yet we need not delineate the outer limits of our definition at this time. We have examined applicant’s medical records and find ample evidence of injury to and treatment of the right eye.”

Turning to the issues in the claim of Mr. Glick, the panel followed its reasoning in Glover and concluded “Here, the facts support a similar analysis.”

At its Annual Insights Symposium (AIS) in May 2022, NCCI presented the State of the Line Report – a comprehensive account of financial results for the workers compensation (WC) line of business. The results presented in that report reflected the most current data available at the time, including NCCI’s preliminary estimates for Calendar Year 2021.

In this new report, NCCI provided updated results for 2021, as well as preliminary information for 2022.

For Calendar Year 2021, NCCI previously estimated WC written premium volume net of reinsurance (NWP) to be $38.3 billion for private carriers. The most recently reported industry data for that year is $38.2 billion, which represents a 0.5% increase from 2020’s NWP volume of $38.0 billion.

For Calendar Year 2021, NCCI previously estimated a WC net combined ratio of 87% for private carriers. Updated industry data indicates a net combined ratio of 87.2%, which represents a 12.8% underwriting gain.

The 2021 combined ratio is the fourth lowest combined ratio in recent history and the eighth consecutive underwriting gain for the WC industry. The current period of consecutive underwriting gains is unprecedented in terms of both duration and magnitude.

The 2021 combined ratio is the fourth lowest combined ratio in recent history and the eighth consecutive underwriting gain for the WC industry. The current period of consecutive underwriting gains is unprecedented in terms of both duration and magnitude.

The WC pretax operating gain measures the overall financial performance of the WC line of business, reflecting both underwriting and investment income. The Calendar Year 2021 underwriting gain of 12.8%, combined with the investment gain of 10.9%, resulted in a WC operating gain of 23.7% for that year. This value is slightly lower than the preliminary estimate of 25% shared at AIS 2022 and marks the fifth consecutive operating gain exceeding 20% for the WC industry.

Changes in rates/loss costs impact premium growth and are one of several factors, such as changes in the economy, cost containment initiatives, and reforms that may impact overall system costs. All else being equal, NCCI expects premium to decrease in 2022 by 7.5%, on average, as a result of rate/loss cost filings made in jurisdictions for which NCCI provides ratemaking services. Improved experience driven by long-term declines in lost-time claim frequency has contributed to this decrease. The changes shown below reflect both voluntary and assigned risk market approvals.

Adir operates the Curacao chain of retail department stores. Between 2004 to 2011 Travelers issued Adir annual guaranteed cost workers’ compensation insurance policies. Each policy was filed with the Workers Compensation Rating Bureau (WCRB) pursuant to Insurance Code section 11658 and specified the rates to be charged to Adir.

In 2012 Adir did not renew its workers’ compensation insurance with Travelers and refused to pay Travelers’ post-policy period adjusted premiums as required by the side agreements.

After negotiations to recover premiums Adir owned under the large risk alternative rating plan failed, Travelers in 2014 served Adir with an arbitration demand. In response Adir filed an action in Los Angeles County Superior Court (L.A.S.C. No. BC575513) against Travelers and its insurance broker, Grosslight Insurance, asserting claims for breach of contract, tortious breach of the implied covenant of good faith and fair dealing and fraud.

The case proceeded in various forums, at various times, In one of the forums, Adir on April 22, 2016 filed an administrative appeal (and on June 2, 2016 a supplemental appeal) with the Department of Insurance pursuant to section 11737, subdivision (f), which authorizes a person aggrieved by application of a rating system to appeal to the Commissioner. In response Travelers petitioned for a writ of prohibition in the pending trial court action requesting the court stay the administrative hearing while the lawsuit was pending. The court denied the petition.

The Commissioner concluded that the Department of Insurance had “exclusive jurisdiction [pursuant to section 11737, subdivision (f)], to adjudicate [Adir]’s claim that Travelers’ unfiled Side Agreements misapplied Travelers’ filed rating plan by violating Insurance Code sections 11658 and 11735, as well as California Code of Regulations, title 10, section 2268.” On the merits the Commissioner ruled Travelers’ side agreements were void because they had not been filed with the WCRB as required and constituted a misapplication of Travelers’ filed rating plan in violation of sections 11658 and 11735.

Travelers filed a petition for a writ of administrative mandate challenging the Commissioner’s decision which was denied by the Superior Court, The Court of Appeal affirmed the Commissioner’s Order as well as the postjudgment order granting Adir’s motion for attorney fees, in the published case of The Travelers Indemnity Co., v Lara – B306897 (November 2022).

Travelers contends the Commissioner acted in excess of his jurisdiction by deciding Adir’s administrative appeal while Adir’s trial court action was pending. Citing the rule of exclusive concurrent jurisdiction applicable between two judicial tribunals. This rule provides that where several courts have concurrent jurisdiction of a certain type of proceeding, the first one to assume and exercise such jurisdiction in a particular case acquires an exclusive jurisdiction.

However, the Court of Appeal noted that there is “some doubt whether the rule of exclusive concurrent jurisdiction applies here.” The “judge-made rule” of exclusive concurrent jurisdiction “is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy.”

“Because it is a policy rule, application of the rule depends upon the balancing of countervailing policies.” The exclusive concurrent jurisdiction doctrine does not apply in this context to proceedings pending before the trial court and an administrative agency; and, in any event, it was reasonable and consistent with the primary jurisdiction doctrine for the trial court to defer to the Commissioner’s determination of the validity of the agreement at issue.

Nicole Schilder (spouse), Isabel Marsau (daughter), and Charles Marsau (son), filed death benefits claims alleging that Donald Marsau died as a result of the repetitive and cumulative stress of his employment with Stander Reubens Thomas Kinsey, insured by defendant Valley Forge Insurance, administered by CNA Claims Plus. The two applications were filed at the Sacramento District office of the WCAB.

The employer is a workers’ compensation defense law firm. Before he died, Donald Marsau was a Certified Workers’ Compensation Law Specialist at Stander Reubens Thomas Kinsey. He practiced workers’ compensation defense principally in the Sacramento area until his death on December 4, 2021.

On February 23, 2022, defendant filed its Petition for Disqualification and Request to Transfer Venue Based on Disqualification of Judges. The Petition asked to disqualify all of the WCJs at the Sacramento and Stockton District Offices. And also requested a change of venue to a district office other than the Sacramento and Stockton District Offices.

A Report on Petition for Disqualification from the Presiding Sacramento workers’ compensation administrative law Judge recommended that the Petition for Disqualification be denied or dismissed.

A WCAB panel considered the allegations in the Petition, and the contents of the Report. Based on its review of the record, and for the reasons discussed below, it denied the Petition and returned the matter to the WCJ for further proceedings as appropriate in the case of Nicole Schilder (Donald Marsau Deceased) v Stander Reubens Thomas Kinsey – ADJ15708296 (October 2022).

Labor Code section 5311 specifically states that a party may object “to a particular workers’ compensation judge” being assigned to the case at issue. (Lab. Code, § 5311.) There is no statutory or case law that allows the disqualification of multiple WCJs by a party filing a single petition to disqualify.

The Appeals Board has previously held that parties may not seek “blanket” disqualifications, and that disqualifications must be sought on a case-by-case basis. (Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 2006 Cal.Wrk.Comp. LEXIS 314 (Appeals Board significant panel).)

Further, although a petition for disqualification of a WCJ is to be determined by the Appeals Board, a petition for change of venue will initially be addressed by the Presiding WCJ at the district office where the petition is filed, and subsequently an aggrieved part may seek review by the Appeals Board. Thus the “Request to Transfer Venue” was not properly before the WCAB panel and was therefore not addressed at this time.

Thus the panel did not address the merits of the disqualification or removal. However, upon return of this matter to the trial level, if defendant seeks a change of venue from the Sacrament District Office, that issue would need to be submitted to the Sacramento Presiding WCJ. Once the proper venue has been determined and the matter has been assigned to a WCJ, defendant may seek disqualification if appropriate.

The panel also said that “It is also important to note that a party’s “unilateral” and/or “subjective” perception of an appearance of bias does not constitute a factual or legal basis for disqualification of a WCJ. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034 [119 Cal. Rptr. 2d 341] Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal. 3d 781 [171 Cal. Rptr. 590].)”