GONZALO P. CURIEL, District Judge.
Presently before the Court are the following cross motions for summary judgment: (1) Defendant Liberty Insurance Corporation's ("Liberty")
Upon consideration of the moving papers, parties' oral arguments, and the applicable law, and for the following reasons, the Court provides this tentative decision (1)
Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)). In making this determination, the court must "view[ ] the evidence in the light most favorable to the nonmoving party." Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.
"[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its merits." Fair Hous. Council of Riverside Cnty, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (internal citations and quotation marks omitted). Moreover, "when simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them." Id. at 1134.
Plaintiff San Diego County Schools Risk Management Joint Powers Authority ("JPA") is an organization formed pursuant to California Government Code § 6500, et seq. whose members consist of various public educational agencies located in San Diego County. JSUMF ¶ 1. The JPA provides and administers a self-insurance program for workers' compensation claims involving its members. The JPA and its members are self-insured pursuant to California Labor Code § 3700(c). Id. ¶ 2.
The JPA purchased a policy titled "Excess Insurance Policy for Self-Insurer of Workers' Compensation and Employers' Liability from Liberty, policy number EW7-64N-436336-012, in effect from July 1, 2012 through July 1, 2013 (Exhibit A, the "Liberty Policy"). Id. ¶ 3. The JPA subsequently purchased an Excess Workers' Compensation and Employers Liability Insurance Policy from Wesco, policy number WPP110079300, in effect from July 1, 2013 to July 1, 2014. (Exhibit B, the "Wesco Policy"). Id. ¶ 4.
In 2012, Francisco Velazquez was employed as a custodian at the San Ysidro School District ("SYSD"). Id. ¶ 6. Mr. Velazquez's job duties included repeated heavy lifting of bags of trash to be placed into a dumpster. Id. After Mr. Velasquez returned to work at SYSD on March 13, 2013 following an extended leave of absence for personal reasons, Mr. Velazquez suffered a cumulative trauma industrial injury where he complained of neck pain, left shoulder pain, left elbow pain, left wrist pain, and radiating left leg pain. Id. ¶ 6. On May 29, 2013, Mr. Velasquez saw his personal physician Dr. Johnson, who placed him on modified duty. Id. ¶ 7. After June 19, 2013, continued to work full time under work restrictions/modified work duty. Id. Mr. Velasquez's pain continued until he became permanently disabled due to his industrial cumulative trauma injury. The parties stipulate that the last day Mr. Velasquez was exposed to the work conditions which caused and/or aggravated his cumulative trauma injury was September 13, 2013. Id. ¶ 8. Mr. Velazquez applied for workers' compensation benefits as a result of his cumulative trauma injury, which the JPA reported to Liberty and Wesco. The JPA has incurred expenses on behalf of SYSD in an amount exceeding $100,000 for workers' compensation benefits paid on Mr. Velasquez's claims. Id. ¶ 9.
Alicia Smith commenced employment at the Escondido Union High School District prior to 1995. Id. ¶ 10. In 2008, she first experienced an industrial cumulative trauma injury from the repetitive motion requirements of her job (typing, lifting of heavy items in the warehouse, and prolonged sitting). She experienced muscle tightness in her right shoulder and arm that gradually increased over time. Ms. Smith worked in a full-duty capacity between 2008 and July 30, 2013, and wore a brace on her right wrist from 2009 to July 30, 2013 due to her typing duties. The parties have stipulated that the last day she was exposed to work conditions that caused or aggravated her was July 30, 2013. Id. ¶ 11. Ms. Smith applied for workers' compensation benefits as a result of her cumulative trauma industrial injury, which the JPA reported to Liberty and Wesco. Id. ¶ 12. The JPA has incurred expenses exceeding $100,000 for workers' compensation benefits paid on Ms. Smith's claim. Id.
The Liberty Policy was in effect from July 1, 2012 through July 1, 2013 and requires Liberty to indemnify (reimburse) the JPA for any workers' compensation claims in excess of the JPA's $100,000 self-insured retention. JUSF ¶ 3. The Liberty Policy provides in pertinent part:
C. This excess insurance applies to losses you have paid as a qualified self-insurer under the Workers Compensation Law for bodily injury by accident or bodily injury by disease including resulting death, provided:
Ex. A at 37. Section N of the Liberty Policy—titled Policy Conforms to Law—states "If terms of this policy are in conflict with any law applicable to this policy, this statement amends this policy to conform to such law." Ex. A at 44.
The Wesco Policy states in pertinent part:
A. How This Insurance Applies
Ex. B at 54.
Wesco contends that a cost sharing agreement was reached with Liberty to share the "excess" costs calculated by "time on the risk" based on the number of days each carrier's policy was in effect during the period of the claimant's cumulative injury. Dkt. No. 36 at 9. Wesco contends that they agreed to a 59.5% (Liberty)—40.5% (Wesco) allocation as to the Velazquez claim and a 91.5% (Liberty)—8.5% (Wesco) allocation as to the Smith claim. Wesco claims that in May 2016 Liberty stopped making payments. Wesco further contends that documents from the period establish that Liberty agreed to share costs in excess of JPA's retention. See Soskin Declaration Ex. 2.
The JPA's first three causes of action seek a declaration that Wesco and Liberty are jointly liable for reimbursement of sums in excess of $100,000 for the Velasquez and Smith claims, and further seeks apportionment of any future similar claims that may involve the policy periods of both policies. The fourth and fifth causes of action seek declaratory relief that, if it is entitled to reimbursement, it must satisfy only a single $100,000 retention. In its sixth cause of action, the JPA seeks a declaration that Liberty breached its insurance contract by failing to pay reimbursement for losses when the claims were due.
Wesco's first cross-claim asserts that Liberty must pay the entirety of the Smith and Velazquez claims. Wesco's second cross-claim asserts that it is entitled to "time on the risk" allocation if it has any obligation to pay as to the Velazquez or Smith claims. Wesco's third cross-claim asserts that the two insurers allegedly reached an agreement to allocate expenses for the Smith and Velazquez claims. Fourth, Wesco seeks reimbursement for any sums paid, because it asserts that 100% of liability falls on Liberty.
Liberty seeks in its motion for summary judgment a declaration that:
Dkt. No. 33 at 2.
Wesco seeks in its motion for summary judgment:
See Dkt. No. 34 at 3.
Liberty's primary argument is that its policy does not apply to the Velazquez and Smith claims because their respective "last exposure to injurious conditions" occurred after the expiration of the Liberty Policy. Dkt. No. 33-1 at 12. According to Liberty, the policy language—"The employee's last day of exposure to those conditions causing or aggravating such bodily injury by disease must occur during the policy period"—clearly and unambiguously means that Liberty has no obligation to reimburse the JPA.
Wesco contends that this policy language is inconsistent with Section 5500.5 of the California Labor Code and thus must be amended to conform to California law. Accordingly, the Court will first determine whether Section 5500.5 applies and amends the Liberty Policy.
Section 3700 of the California Labor Code establishes the employer's duty to "provide compensation security" for worker's compensation claims by either "(1) carrying insurance with an authorized company (subd. (a)) or (2) securing from the director a certificate of consent to self-insure which may be furnished upon satisfactory proof of ability to self-insure and pay compensation that may become due. (subd. (b))." Self-Insurers' Security Fund v. ESIS, 204 Cal.App.3d 1148, 1156 (1988). Under Section 3700, every employer except the state must secure the payment of worker's compensation claims by "being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this state" or "For any county, city, city and county municipal corporation, public district . . . including each member of a pooling arrangement under a joint exercise of powers agreement (but not the state itself), by securing from the Director of Industrial Relations a certificate of consent to self-insure against workers' compensation claims." Cal. Labor Code § 3700. Under the self-insurance program, the employer must demonstrate the financial ability to pay any compensation that may become due to its employees. Cal. Labor Code § 3700. Under California law, a self-insured employer may purchase a "special excess workers' compensation policy to discharge any or all of the employer's continuing obligations as a self-insurer to pay compensation or to secure the payment of compensation." Cal Labor Code § 3702.8, subd. (c).
California Labor Code Section 5500.5 states in pertinent part that "liability for occupational disease or cumulative injury claims filed or asserted on [January 1, 1981 and thereafter] shall be limited to those employers who employed the employee during a period of [one year] immediately preceding the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first." In General Accident Ins. Co. v. Workers' Comp. Appeals Bd., 47 Cal.App.4th 1141 (1996), the court judicially interpreted the phrase "employer" as used in Section 5500.5 to include multiple insurers which have assumed an employer's obligation to pay workers' compensation benefits.
Wesco argues that Liberty and Wesco must be treated as "employers" for purposes of Section 5500.5. Specifically, Wesco points to the court's analysis in General Accident to argue that workers' compensation insurers are subrogated to the rights of the employer to recover losses (putting carriers in the same position as an employer). Dkt. No. 34-1 at 18. Further, Wesco asserts that Liberty's argument—that the Liberty Policy is not governed by Section 5500.5 because it only affords excess insurance to the self-insured JPA—is untenable because Liberty has never provided any authority for this position, and because numerous parts of the Liberty policy state that it applies to JPA's obligations under California's workers' compensation law. Dkt. No. 34-1 at 13.
Liberty argues that Section 5500.5 does not apply because it, as an excess insurer for a self-insurer, is not an "employer." Specifically, Liberty asserts that General Accident is inapposite because that case involved only primary insurers and not excess insurers. Dkt. No. 38 at 8. Liberty argues that unlike an excess insurer, a "primary compensation insurer" is "directly and primarily liable" for payment of compensation to an injured worker. See id. (citing Subsequent Injuries Fund of Calif. v. Industrial Acc. Com., 49 Cal.2d 354, 356 (1957)). Liberty asserts that excess insurers such as Liberty and Wesco provide only reimbursement of benefits the self-insured employer must pay directly. Accordingly, Liberty argues that an excess insurer does not assume the employer's obligation to pay benefits directly to claimants, but rather is more in the "nature of reinsurance" by allowing the self-insurer to protect itself against a portion of the risk it has agreed to insure. Dkt. No. 38 at 10.
The case law strongly favors a reading that Section 5500.5 does not apply as to excess insurers of a self-insurer. In San Francisco Bay Area Rapid Transit District v. General Reinsurance Corporation, 111 F.Supp.3d 1055, 1059 (N.D. Cal. 2015), General Reinsurance issued an excess insurance policy to the San Francisco Bay Area Rapid Transit District ("BART"), which had elected to serve as a self-insurer for workers' compensation claims. In examining whether Section 5300 of the Labor Code applied, the Court held, in the context of examining a jurisdictional argument, that Division Four of the Labor Code (the workers' compensation statutory scheme, including Section 5300) is limited to disputes involving workers' compensation claims, including claims against workers' compensation policies. Id. at 1065. Further, the Court explicitly found that "[a]n excess insurance policy, however, is not a workers' compensation policy and thus not subject to Division Four." See id. (citing Millman v. Contra Costa Cnty., W.C.A.B. No. ADJ1527953, 2013 Cal. Wrk. Comp. P.D. LEXIS 615 (Appeals Bd. noteworthy panel decision)).
The Court's conclusion that Section 5500.5 does not apply to this case is also supported the different roles played by a primary/self-insurer and an excess insurer. As the self-insurer, the JPA is the party obligated to "place itself in the position of a private insurer." See Denny's Inc v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433, 1442 (2003). The excess insurer, on the other hand, does not pay any worker's compensation benefits but rather reimburses the JPA after the JPA has paid these benefits. Excess insurance under California law is optional and not required by any workers' compensation statutory scheme. Cal. Labor Code § 3702.8(c) (self-insured employers "may purchase" a special excess workers' compensation policy to discharge any or all of the employer's continuing obligations as a self-insurer to pay compensation or to secure the payment of compensation."). See also Millman, 2013 Cal. Wrk. Comp. P.D. LEXIS at *5-6 (noting that workers compensation policies are distinguished from excess policies because workers compensation policies must contain a clause that the "insurer will be directly and primarily liable to any proper claimant for payment of . . . compensation.").
Moreover, the cases cited by Wesco to demonstrate that Liberty's "last exposure" provision violated law and public policy as inconsistent with Section 5500.5 are inapposite and did not involve excess insurers of a self-insured entity. See, e.g., Dkt. No. 44 at 11 n.2. Instead, Wesco merely relies on cases that describe the general public policy rationale of Section 5500.5 that allows an employee to recover for his entire cumulative injury from one or more employers of his choosing for whom he worked within the preceding five years, even though a portion of his injury was incurred in prior employments, and allows employers the right to seek contribution from other liable employers. See Flesher v. Workers' Comp. Appeals Bd., 23 Cal.3d 322, 325-26 (1979). These rationales do not justify the imposition of Section 5500.5 on an excess insurer's policy, particularly when no case has ever done so.
In its Reply, Wesco cited for the first time General Reinsurance Corp., et. Al v. Workers' Compensation Appeals Board, et. Al., 65 Cal. Comp. Cases 1441, 2000 Cal. Wrk. Comp. LEXIS 7201 (2000), arguing that this case established that excess insurance issued to a self-insurer was subject to Workers' Compensation Law. There, the Court of Appeal found that the fact that an excess insurance was an indemnity policy, not a direct liability policy, did not prevent the Court from requiring joinder because provisions of the excess policy indicated the excess insurer was clearly "interested" in the proceeding. Id. at *1444. Liberty, in its Sur-Reply argues that General Reinsurance was a limited holding addressing only whether an excess insurer could be joined in a workers' compensation proceeding. The Court agrees that General Reinsurance stands only for the proposition that an excess insurer can be properly joined in a workers compensation case. See BART, 111 F.Supp.3d 1055, 1067 (stating that the General Reinsurance joinder case stands only for the proposition that an "excess insurer may be a party to a workers' compensation proceeding.").
Accordingly, the Court concludes that Section 5500.5 does not apply to an excess insurer of a self-insured entity.
Because the Court finds that Section 5500.5 does not apply, the Court will accordingly decline to rewrite the Liberty Policy to conform with the provisions of Section 5500.5. The Liberty Policy states that Liberty would be obligated to pay worker's compensation benefits beyond the JPA's $100,000 retention if:
Wesco's argument—relying on Section 5500.5—is that these provisions should be rewritten to account for a one year lookback period pursuant to Section 5500.5. See Cal Labor Code § 5500.5 (limiting liability to a period of one year immediately preceding the date of injury (as defined by Section 5412) or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first).
The Court is particularly reluctant to rewrite the Liberty Policy when it appears that the policy language is standard policy language included in worker's compensation excess insurer policies across the country. See BART, 111 F.Supp.3d 1055, 1060 (policy applied to losses paid for "bodily injury by disease" which was defined as "the bodily injury or disease is caused by the conditions of employment by the Insured. The employee's last day of last exposure to those conditions of that employment causing or aggravating such bodily injury by disease must occur during the period this policy is in force."); Supervalu, Inc. v. Wexford Underwriting Managers, Inc., 175 Cal.App.4th 64, 78 (2009) (indemnity provision in excess insurer contract required "last day of exposure" to take place within the policy period). The Court observes that even the Wesco policy uses similar language and would need to be rewritten to conform with Section 5500.5 under Wesco's theory. See Ex. B. at 54 ("1. the bodily injury (including cumulative trauma) by accident must occur during the policy period . . . 2. the bodily injury (including cumulative trauma) by disease must be caused or aggravated by the conditions of your employment. The employee's last day of last exposure to the conditions causing or aggravating such bodily injury (including cumulative trauma) by disease must occur during the policy period.") (emphasis added). Given that no case has ever rewritten an insurance policy to conform with Section 5500.5(a), the Court declines to do so here.
As the Court has determined that Section 5500.5 is irrelevant to an excess policy of a self-insurer, these provisions do not apply. Therefore, the remaining issue is whether or not the Smith and Velasquez claims fall within the language of the Liberty Policy as written. Wesco argues the express language of the Liberty policy imposes the "last exposure date" limitation only on bodily injury by disease claims and that the Smith and Velasquez claims do not constitute "diseases" because they are injuries caused accidentally by repetitive motions and the long term effects of lifting objects. Liberty argues that cumulative injury by disease under its policy encompasses "any and all work-related injury or disease that results from long term `exposure' to hazardous conditions." Dkt. No. 38 at 16.
Liberty has the better position. Cumulative injury can constitute "bodily injury by disease" in an excess insurer's policy. Indeed, such a possibility is explicitly accounted for in the Wesco policy. See Ex. B at 54. ("the bodily injury (including cumulative trauma) by disease must be caused or aggravated by the conditions of your employment. The employee's last day of last exposure to the conditions causing or aggravating such bodily injury (including cumulative trauma) by disease must occur during the policy period.") (emphasis added). Moreover, the Liberty policy explicitly defines an accident to be "each accident or occurrence or series of accidents of occurrences arising out of any one event" and that "the accident is deemed to end 72 hours after the event commences." Ex. A at 40. Accordingly, cumulative injury of the type suffered by Smith and Velasquez under the Liberty policy cannot constitute an "accident" and must necessarily be accounted for by the "bodily injury by disease" provision.
It is undisputed that the dates of Smith and Velasquez's last exposure to injurious conditions occurred after the Liberty Policy expired on July 1, 2013. JSUMF ¶ 8. Therefore, these claims fall outside the scope of the Liberty Policy. Based on the terms of the Wesco Policy, the Court concludes that Wesco is responsible for 100% of any workers compensation benefits paid as to the Smith and Velasquez claims paid in excess of the JPA's retention.
Plaintiff's Fourth and Fifth Causes of Action in the First Amended Complaint seek a judicial declaration that the JPA is "only required to satisfy one retention" and that Liberty is obligated to reimburse the JPA for all unreimbursed expenses incurred in excess of the $100,000 retention as to the Velazquez and Smith claims Liberty argues that it is "entitled to summary judgment as to all causes of action within the first amended complaint." Dkt. No. 33-1. The parties have not sufficiently briefed the number of retentions required to trigger liability. Nonetheless, the Court tentatively finds that these causes of action are
Liberty also moves for summary judgment as to Wesco's Third Cross-Claim for breach of contract. Wesco has asserted that notwithstanding the terms of the Liberty Policy, Liberty and Wesco entered into an agreement to share the reimbursement of JPA's expenses for the Velazquez and Smith claims in excess of JPA's retention. Dkt. No. 34 at 21-24. Under that agreement, the parties purportedly agreed to the following allocation of claims in excess of JPA's retention: 59.5% (Liberty)/40.5% (Wesco) allocation for the Velasquez claim and a 91.5% (Liberty)/8.5% (Wesco) allocation for the Smith claim. Wesco alleges that Liberty has breached this agreement.
Liberty asserts that Wesco has not provided evidence of such a contract and that Wesco did not identify any documents or witnesses relevant to such an agreement in its Rule 26 disclosures. Dkt. No. 33-4, Topp Decl., Ex. A. Wesco asserts that its counsel Stephen Soskin made an unintentional oversight by failing to identify witnesses and documents related to the breach of contract claim and has since served a "First Supplement" of initial disclosures identifying witnesses and documents that Wesco believes establish the existence of a contract between Wesco and Liberty to share the costs of the Velazquez and Smith claims on their relative "time on the risk." Dkt. No. 36 at 28. In these disclosures, Wesco has included a claims summary regarding the Velasquez claim which shows that "Authority was received from Liberty Mutual for 59.5% of the settlement or $26,775.00." Dkt. No. 36-2, Ex. 2 at 14. Further, Wesco has included an email related to the Smith Claim from the JPA's claims administrator (Athens Administrators) to Liberty's Rebecca Bearman, with Wesco CC'ed, stating that she "received everyone's approval" for an allocation related to the Liberty claim. Dkt. No. 36-3, Ex. 3 at 16.
Liberty has not shown an absence of a genuine dispute of material fact as to the existence of a valid and enforceable contract between Liberty and Wesco. Liberty has not provided an evidentiary basis upon which the Court can conclude that no contract exists. Meanwhile, Wesco has provided evidence suggesting conduct indicating that a contractual agreement between Liberty and Wesco may have been reached. Accordingly, at this juncture the Court will tentatively
Based on the reasoning above, the Court will tentatively
Based on the foregoing, the Court tentatively
