1 PF&M ANALYSIS: WC B WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY ANALYSIS INTRODUCTION The National Council on Compensation Insurance, Inc. (NCCI) developed WC B Workers Compensation and Employers Liability Insurance Policy. It covers the named insured's statutory liability under various state workers compensation laws or acts. It provides defined benefits to employees for injuries they sustain or diseases they contract that arise out of and in the course of their employment. All states have laws that require such protection for workers and those laws prescribe the amount and duration of the benefits provided. Employers Liability covers an employer's common law or tort liability for employee injuries that fall outside the scope of the state laws or acts. This liability is separate and distinct from the liability that workers compensation laws impose. The policy provides the mandatory benefits that the various state laws prescribe and require for accidental work-related injuries that occur in the course of employment, subject to its terms and conditions. It must be emphasized that the injury must arise from and be related to the injured worker's job duties. Coverage also applies to the related costs for disease or death that occur as a result of the accident. There are times when the employed worker s injury is not compensable under workers compensation or occupational disease laws. In those cases, Employers Liability coverage responds to the injured worker's allegations of negligence on the employer s part, subject to its terms, conditions, limitations, and exclusions. The coverage the basic policy provides may be broadened, restricted, clarified, or made to comply with specific state regulatory requirements by using a variety of available endorsements. WC B WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY ANALYSIS Note: This analysis is of WC B. This edition is effective 07/31/11. The one significant change from WC A is in bold print. The policy opens by explaining that the insurance company agrees to provide the coverages indicated in return for the named insured paying the premium. This is subject to all of the policy s terms and conditions. GENERAL SECTION A. The Policy The policy includes the Information Page and all endorsements and schedules listed on it as of its inception date. It is an insurance contract between the named insured employer and the insurance company identified on the Information Page. The only agreements that affect the insurance coverage provided are the ones stated in the policy. Policy terms and conditions cannot be changed or waived unless the insurance company does so by issuing written endorsements. Note: Waiver means intentionally or voluntarily relinquishing a known right. As a result, this provision states that a written
2 endorsement is needed to confirm that either party is surrendering a known right. The intent of this language is to prevent any oral agreements or unauthorized written agreements from being considered or treated as part of the insurance policy. Example: Linda copies a brochure in the human resources office about Employers Liability coverage that describes the coverage the policy provides. She notices several statements to the effect that the brochure only describes the coverage. Linda wants to know exactly what coverage is provided and asks her human resources manager for a copy of the company s actual policy to review. B. Who Is Insured The employer identified in Item 1. on the Information Page is the named insured. If the form of business is a partnership and the named insured is the partnership, an individual partner is considered an insured only to the extent of being the employer of the partnership's employees. Note: Unlike many liability coverage forms and policies, the spouse of an individual, partner, member, or manager of a joint venture is not automatically included and covered as an insured. If the spouse is an employer, the spouse must be either named or have a separate policy that covers the operations for which the spouse is the employer.
3 Example: A partner in a law firm is an insured with respect to the employees of the law firm. However, he is not an insured for injuries to his household employees. Note: WC Joint Venture as Insured Endorsement makes each member of the joint venture an insured under a policy where the joint venture is a named insured. Similar to the partner as an insured, the member is an insured only with respect to the joint venture's employees. Related Article: Workers Compensation and Employers Liability Insurance Policy Available Endorsements and Their Uses C. Workers Compensation Law The term "workers compensation law" means the workers compensation law(s) and the occupational disease law(s) of each state under Item 3. A. on the Information Page. It includes any changes in those laws enacted during the policy term. It does not include any federal workers compensation or occupational disease law(s) or any terms or provisions of any non-occupational disability benefits law(s). While it does not include federal laws, it does include territories if that territory is listed under Item 3. on the Information Page. Note: It is important to note that U.S. territories can be listed and coverage provided but this requires additional work because the definition of state does not include territories. Before attempting to add a territory, it is very important to understand the insurance requirements and arrangements for the territories of Puerto Rico, the United States Virgin Islands, American Samoa, and Guam. Note: Older versions of this policy included detailed citations of the various state laws. This is no longer necessary because workers compensation and occupational disease laws and statutes are readily available for review and are generally well known. This also means that changes in the law(s) that take place during the policy period are not endorsed to the policy as in the past. Because this paragraph specifically excludes federal workers compensation, occupational disease, or similar laws, special endorsements are available when such coverage is required.
4 Related Article: Workers Compensation and Employers Liability Insurance Policy Available Endorsements and Their Uses D. State When the term "state" is used anywhere in the policy, it means any state of the United States of America. It also includes the District of Columbia. Note: Item C. above states that territories can be listed under Item 3 and be covered. However, this section does not broaden the definition of state to include territories. E. Locations Coverage applies to workplaces listed under Item 1 or Item 4 on the Information Page. It also covers all other workplaces in states listed under Item 3 unless other insurance or self-insurance covers them. This policy covers the named insured's total liability as any state workers compensation law establishes it. Some states have laws that require insuring this total liability under one policy. In states that do not have this requirement, it is possible to "carve out" certain workplaces and exclude them from coverage. An example of this is when a project uses a wrap-up program and all contractors that work within that wrap-up are covered under the wrap-up workers compensation program. WC Designated Workplaces Exclusion Endorsement is used to carve out the coverage for the wrap-up project from the subcontractor s policy. Example: Big Boy Builders subcontracts with Joe s Flooring Installations to install laminate floors in living/dining rooms in new homes it builds in an exclusive subdivision. All workers on this Big Boy construction project are covered under a wrap-up workers compensation program. Joe does not include any individual workers compensation premium in his costs because the wrap-up covers all workers compensation injuries. Joe can remove the project payroll from his policy by attaching WC Designated Workplaces Exclusion Endorsement. Multiple policies issued to insure various employers engaged in large construction projects can be combined for premium discount purposes where the law permits. The same insurance company or group must issue them and they must be limited to the applicable employer's work at the construction site. Similar coordinated policies are also permitted to address other related cases and circumstances. Related Articles: Workers Compensation and Employers Liability Insurance Policy Available Endorsements and Their Uses Premium Discount Endorsement Overview of Wrap-up Programs PART ONE WORKERS COMPENSATION INSURANCE
5 A. How This Insurance Applies This insurance covers bodily injury by accident or bodily injury by disease, including death that results from either. This is subject to the following: 1. An Accident. Bodily injury due to an accident must occur during the policy period. Example: Jordan Electrical s policy period with Injury Prone Mutual is from 04/01/13 to 01/13/14 and with Better Care Mutual from 04/01/14 to 04/01/15. An employee, Kelly, is working on site and is shocked on 03/31/14 but continues to work. She suffers a heart attack 04/02/14 and is rushed to hospital. The attending doctors explained that the heart attack was a delayed reaction to the electrical shock she sustained two days earlier. Prone Mutual believes the bodily injury occurred on 04/02/14 with the heart attack but Better Care Mutual believes the bodily injury occurred at the time of the electrical shock. 2. Disease. When bodily injury is due to disease, the policy period that provides coverage is the one when the employee was last exposed to the conditions that either caused or aggravated the bodily injury by disease. Related Court Cases: Shipyard Carpenter s Last Employer Liability for His Asbestos Exposure and Death Benefit Workers Compensation Coverage Triggers on Date of Last Injurious Exposure
6 B. We Will Pay Example:Penelope worked as an administrative assistant for 15 years. She worked for five different employers. On 05/25/14, while employed by Major Insurance Agency, her doctor diagnosed the pain in her arms and shoulders as resulting from carpel tunnel syndrome. He explained that it was the result of her many years of typing. Only the Major Insurance Agency s workers compensation policy in effect at the time of the diagnosis responds to the claim. The insurance company agrees to pay benefits promptly but only those benefits due from the named insured based on the workers compensation law that applies. This is the basic insuring agreement and indemnity provision and is probably the most important section in the policy. It means the policy insures the employer's entire liability under the designated law or laws. Specific benefits are not listed because coverage depends on the state workers compensation law that applies, including any revisions or amendments that might affect a particular loss. Coverage under this part is for unlimited dollar amounts for any specific accident as well as to any number of accidents that occur during the policy period. This is because of the way state workers compensation laws are structured and arranged. They provide for unlimited medical benefits to injured employees. Although disability benefits are limited to a given percentage of preaccident wages, they are paid for the injured worker's lifetime or his or her surviving spouse s lifetime. By implication, this provision recognizes that the number of employees may vary and the employer may engage in new or different operations. In either case, the intent is to cover all operations and employees and respond to the full extent of every statutory liability the law imposes on the employer, except for payments it must make as outlined in section F. below. C. We Will Defend The insurance company has both the right and the duty to defend any claim, suit, or other legal action against the named insured with respect to benefits that this insurance coverage pays.. However, it is not obligated to defend any legal action that this insurance does not cover. Note: The insurance company provides this defense provision at its own expense. It is similar to provisions in most other liability coverage forms and policies. The company retains and compensates legal counsel as necessary to properly represent the employer in lawsuits, administrative and judicial proceedings, and appeals. It can select legal counsel it deems appropriate as part of its right to defend, investigate, and settle claims. It also assumes defense costs without any monetary limitation. The company's duty to defend is broader than its duty to indemnify. Unless the claim's allegations clearly remove it from the scope of coverage, the company must defend until it is clearly established that the loss is not covered.
7 The insurance company also has the right to investigate and settle any claim or legal action. Example: Jerad is a truck driver. He submits a claim for total disability because of an inoperable herniated disc that his doctor diagnosed. Jerad states that his pain is so bad he must stay in the house all the time. Just Checking Insurance Company hires an investigator to secretly follow Jerad for a week to verify his claims. The pictures of Jerad playing basketball and fixing his roof are used to justify Just Checking denying his claim. D. We Will Also Pay The insurance company also pays a number of costs and expenses as part of a claim, suit, or legal action it defends in addition to other amounts it pays. They include the following: 1. All reasonable expenses the named insured incurs at the company's request. However, this does not include loss of earnings. 2. Premiums for bonds to release attachments or for appeal bonds, up to amounts that this insurance pays 3. Costs of litigation assessed against the named insured 4. Interest on judgments as the law requires. However, this is only until the insurance company offers to pay the amount due. 5. Any and all expenses the insurance company incurs that relate to a claim, suit, or action Example: This includes the costs that Just Checking Insurance Company incurred to investigate Jerad in the example above. E. Other Insurance More than one insurance company may be responsible for a particular loss. In that case, this insurance company does not pay more than its proportion or share of costs and benefits covered by all available sources. The other sources may be other insurance companies or self-insurance. All sources must contribute equally until the loss is paid. If the limits of any other insurance policy or self-insurance are used up, all remaining insurance pays in equal shares until the loss is completely paid. There may be cases where more than one workers compensation policy applies to a specific accident or occupational disease. In others, another arrangement, such as self-insurance, may apply. This section addresses the way coverage applies when more than one coverage could apply to a claim. However, the main reason is to specify that different carriers or selfinsurers pay losses in equal shares. Example: John was seriously injured in an accident. Coverage is available from two insurance companies and a selfinsurance plan. Company C insurance company is subject to a $100,000 limit but the other carriers are not limited. The
8 amount of John s claims totals $1,250,000 over his lifetime and is paid as follows: Company Initial Amount Remaining Amount Total Paid A $100,000 $475,000 $575,000 B $100,000 $475,000 $575,000 C $100,000 0 $100,000 Total $300,000 $950,000 $1,250,000 Employers in all states must either purchase insurance to cover their full liability or qualify as self-insurers by meeting certain specific financial requirements. A few large and financially stable employers may be completely self-insured but most also purchase excess coverage, either voluntarily or as part of having to qualify for self-insurance. Excess coverage is similar to other kinds of excess liability insurance. It pays the amount that exceeds a certain monetary threshold, such as a deductible or retention amount. This excess may apply as specific excess on a specific loss or as aggregate excess for the total of losses that occur during the policy period. F. Payments You Must Make The insurance company does not pay on behalf of the named any amounts beyond the benefits described in the workers compensation law that applies. Examples of such costs that the company does not pay are the following: 1. That result from the named insured engaging in serious and intentional misconduct 2. Imposed because the named insured employed an individual whom it was not legally permitted to employ. This applies only when such employment was done so with the named insured s knowledge. 3. Amounts it must pay because it did not comply with health or safety regulations 4. That result from violating a workers compensation law with respect to discharging, coercing, or in any way discriminating against any employee In some cases the insurance company may pay these amounts when it settles a claim. In those cases, the named insured must reimburse the insurance company. Example: Happy Valley Printers employed several underage teenagers to work in its ancient plant. One of the teens sustained a serious injury to his arm when an overheated machine broke down on one particularly hectic day. Happy Valley promptly reported the loss, submitted the claim, and was honest about the worker s age and the details of the accident. A provision in the state's workers compensation law provided for payments that exceed regular benefits for underage workers and Happy Valley s carrier had to make the additional payments. Happy
9 Valley then had to reimburse the carrier for those additional payments because it violated state hiring laws. Related Article: Employed Minors and Workers Compensation Insurance G. Recovery from Others The insurance company has the named insured's rights of recovery against those responsible for an injury. It also has the rights of any party entitled to benefits under this insurance to recover payments it paid from those liable from the injury that resulted in those payments. The named insured must do everything possible and necessary to protect those rights and help the insurance company enforce them. This is similar to the rights of recovery provisions in other coverage forms and policies. Most workers compensation laws state that the employer is entitled to the employee's rights of recovery against third parties to the extent of the compensation it owes. Under this provision, the employee's rights of recovery against others pass to the employer by the workers compensation act and, in turn, pass to the insurance company. Example:Zachary works for Rapunzel, LLC. While he is driving to an appointment, the car Kimberly drives strikes his car and seriously injures his left hand. Rapunzel s worker s compensation carrier, Great Job Mutual, pays for Zachary s injuries according to its policy terms. Great Job Mutual then assumes all of Rapunzel and Zachary s rights of recovery against Kimberly to recover the payments it made and may continue to make. The insurance company obtains the employee's rights of recovery against third parties to the extent of the benefits it paid. WC Waiver of Our Right to Recover from Others Endorsement waives the company's right of subrogation against designated third parties responsible for an injury. The endorsement schedule is used to list the persons or organizations that the insurance company agrees to not subrogate against. Related Article: Workers Compensation and Employers Liability Insurance Policy Available Endorsements and Their Uses Related Court Case: Insurer s Recovery under Lien Capped at Claimant s Net Recovery H. Statutory Provisions This section contains six statements that apply to the insured employer as required by law in the states where coverage is provided. 1. The insurance company is considered to have received notice of an injury to an employee at the same time that the named insured received it. 2. The named insured's bankruptcy, insolvency, or default does not relieve the insurance company of its duties when a covered injury occurs. 3. The insurance company s responsibility is to pay benefits to any person entitled to them. Such persons or an agency
10 authorized by law may enforce those duties against the named insured, the insurance company, or both. 4. With respect to the workers compensation law(s) that apply, jurisdiction over the insurance company is treated the same as jurisdiction over the named insured. The company is obligated to the same decisions made based on that law against the named insured, subject to policy provisions that do not conflict with the law. 5. This policy automatically conforms to any part of any workers compensation law that applies to the following: Benefits that this insurance pays Special taxes, payments made to security funds or other special funds, and assessments that the law requires the company to pay 6. Any portion of the policy that conflicts or is at odds with the workers compensation law in a given state is automatically changed to conform to and comply with that state s law. Nothing in any of these statements relieves the named insured of its duties under this policy. Note: Only those provisions that laws in a given state require are made part of the policy and only with respect to the coverage that applies in that state. For example, the right of "direct action" against the company under item 3. above does not apply in any state that does not have a direct action statute. PART TWO EMPLOYERS LIABILITY INSURANCE Part Two provides Employers Liability Insurance as opposed to Part One that provides Workers Compensation Insurance. The main difference between the two is that Part One applies to statutory benefits the named insured must pay. Part Two applies to common or tort law or other damages for which the named insured is liable. A. How This Insurance Applies Employers liability insurance is coverage for bodily injury by accident or bodily injury by disease, including death that results from either. It is subject to five conditions: 1. The employee's bodily injury must arise from and be in the course of employment by the named insured. 2. The work the employee performs at the time he or she incurs bodily injury does not have to take place in a state or territory listed in Item 3. A. on the Information Page. However, that employee's employment must be considered necessary or incidental to the named insured s work at a location within such a listed state or territory. 3. Coverage for bodily injury by accident requires that the bodily injury take place during the policy term. 4. Coverage for bodily injury by disease requires that the conditions that relate to the named insured's employment must cause or aggravate the disease. The employee's last day of exposure to the conditions that cause or aggravate the bodily injury caused by disease must be during the policy term. 5. Suits or legal action against the named insured for bodily injury by accident or disease must be brought in the United States of America, its territories or possessions, or Canada. B. We Will Pay The insurance company pays all amounts the named insured must legally pay as damages because of bodily injury to its employees that this insurance covers. Where the law permits recovery for such damages, the company is responsible for all of the following damages: 1. An employee of the named insured is injured and that employee makes a claim against a third party. That third party then pursues actions against the named insured to recover for that employee s claim. Note: This is commonly referred to as a "third party over" claim made against the employer by a third party an injured employee sues.
11 Example: Mike was an employee of MasonryIsUs and was injured on a construction site. While carrying some hollow concrete block, he tripped over some pipes that fell from a pile of pipes that employees of Bartleby Plumbing improperly stacked. He was entitled to both workers compensation benefits from MasonryIsUs and to damages from Bartleby. If he sued Bartleby and it, in turn, sued (or "impleaded") the insured employer for contribution or indemnification,masonryisus' Employers Liability coverage would apply. 2. Care and loss of services Note: If the employee makes a claim under items 1 or 4 of this item, a separate claim may be made by a family member for his or her care and loss of services. This item would pay for that claim. 3. Consequential bodily injury to the injured employee s brother, sister, parent, child, or spouse. This is subject to a requirement that the damages are the direct consequence of a bodily injury incident that arises from and occurs during the course of that employee s employment by the named insured. If an employee makes a claim under items 1. or 4. of this section, a family member can make a separate claim for consequential injuries that relate to the employee s injuries. 4. Because of bodily injury to the named insured's employee that arises from and in the course of employment and is claimed against the named insured in a different capacity than as an employer Note: Employers liability also covers damages an employer owes under the so-called "dual capacity" doctrine. It states that an employer may have two different legal personalities for purposes of liability to an employee.
12 Example: Joe worked for Sturdy Steel Doors, a steel door manufacturer. He was welding a door when one of its springloaded hinges snapped open, struck, and seriously injured his arm. When the hinge was inspected, it was determined that the spring-loaded component of the hinge did not have the proper retaining pin to hold it in place. Sturdy Steel Doors may be liable for Joe s injury under products liability because it manufactured the defective hinge. This is the indemnity provision of Part Two. The company pays all amounts the insured employer is legally responsible for as damages because of bodily injury that this policy covers. "Damages" is the key word. Employers liability insurance is coverage against torts or other liability for damages. This contrasts with the employer's statutory liability for workers compensation benefits under Part One. "Damages" is not a defined term but the following is a generally accepted legal meaning from Black's Law Dictionary: "A pecuniary (financial) compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another." The kinds of damages listed above are not meant to be inclusive. They simply illustrate the primary categories where these claims normally fall. Part Two does not cover true no-fault workers compensation laws, like the United States Longshore and Harbor Workers Compensation Act (USL&HWCA) because they compensate on a no-fault basis. Part One may provide coverage for USL&HWCA, Federal Black Lung, and other federal laws by endorsing the policy to amend its language to include a federal law or laws in addition to the applicable state or territory laws listed under Item 3. A. C. Exclusions Coverage does not apply to the following: 1. Any liability assumed under a contract. However, this does not apply to warranties that the named insured will perform its work in a workmanlike way. 2. Any punitive or exemplary damages awarded because of bodily injury to a person whose employment violates the law 3. Any bodily injury to a person whose employment violates the law if the named insured or any of its executive officers actually knew that the employment was unlawful 4. Obligations that workers compensation, occupational disease, unemployment compensation, disability benefits, or any similar laws impose Note: This exclusion removes all obligations under workers compensation or similar laws from Part Two because either Part One covers them or they are not covered at all. However, a specific employee not covered under a workers compensation law
13 may sue the employer for damages. Part Two may cover that claim. For example, workers compensation laws do not usually apply to agricultural and domestic workers. Related Article: Domestic Workers, Farm Workers, and Workers Compensation Insurance 5. Any bodily injury the named insured intentionally causes or aggravates Note: This important exclusion is similar to corresponding exclusions in other liability coverage forms and policies. It also raises at least two points that vary in importance from state to state, depending on the state s law. First, most states except intentional injury by the employer from the exclusive remedy doctrine. Since the exception applies to Part One, this exclusion is needed in Part Two to exclude coverage for these types of injuries. Second, the exclusion applies to the employer but not to co-workers. In most states, the employer is not responsible for an employee s intentional torts. Related Court Case: Co-worker s Punch Resulted in Accidental and Compensable Injuries 6. Bodily injury that occurs outside the United States of America, its territories or possessions, and Canada. However, coverage does apply to bodily injury that citizens or residents of the United States of America or Canada sustain while temporarily outside either of these countries. 7. Any damages due to the named insured coercing, criticizing, demoting, evaluating, reassigning, disciplining, defaming, harassing, humiliating, terminating, or discriminating against any employee. This also applies to damages that result from any of the named insured's personnel practices, policies, acts, or omissions. Example: Sara is Pete s administrative assistant. Pete has a bad temper. Whenever he becomes angry at anyone, he yells at Sara, humiliates her in front of her co-workers and outsiders, and defames her abilities and character. She begins to suffer high blood pressure, anxiety attacks, and other stress related issues but cannot quit her job due to economic realities. She has a serious stroke and her family sues Pete. The workers compensation policy does not provide coverage in this case because of Pete s actions towards Sara. 8. Bodily injury to persons working subject to the following Acts: The United States Longshore and Harbor Workers Compensation Act The Defense Base Act The Outer Continental Shelf Lands Act The Nonappropriated Fund Instrumentalities Act The Federal Coal Mine Health and Safety Act WC B does not have the reference to "of 1969" that was in WC A.
14 This exclusion also applies to any other federal workers or workmen's compensation law, any other federal occupational disease law, and any amendments to any of these laws. Note: This exclusion excludes coverage under specifically listed federal acts and clarifies policy language. Related Articles: The United States Longshore and Harbor Workers Compensation Act (USL&HWCA) The Defense Base Act The Outer Continental Shelf Lands Act The Nonappropriated Fund Instrumentalities Act The Federal Coal Mine Health and Safety Act 9. Bodily injury to persons who work subject to the Federal Employers' Liability Act. This exclusion also applies to any other federal law that obligates employers to pay damages to employees for bodily injury due to or in the course of their employment. This also includes any amendments to those laws. Related Article: The Federal Employers' Liability Act (FELA) of Bodily injury to crewmembers or the master of any vessel 11. Fines or penalties required due to violating any federal or state law 12. Damages that should be paid under the Migrant and Seasonal Agricultural Worker Protection Act. This also includes damages under any other federal law that awards damages for violating those laws or regulations and any amendments to those laws. Related Article: The Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) D. We Will Defend The insurance company has both the right and the duty to defend any claim, suit, or other legal action for covered damages that others bring against the named insured. It does so at its own expense. It also has the right to investigate and settle any claim, suit, or other legal action. However, it does not have a duty to defend any legal action against the named insured that this policy excludes. It also does not have a duty to defend or continue to defend after it pays the limit of insurance that applies. This provision is similar to those in most other liability coverage forms and policies and Part One of this policy. Some coverage forms and policies have provisions for the right to defend but not the duty to do so. This and similar defense provisions obligate the insurance company to retain and pay competent legal counsel to properly represent the named insured in lawsuits, administrative or judicial proceedings, and appeals. The company selects legal counsel it deems appropriate as part of its right to defend and has the right to investigate and settle claims. It assumes unlimited defense costs. Like similar provisions in other liability coverage forms and policies, the company's duty to defend is broader than its duty to indemnify. Unless the allegations of a claim clearly remove it from coverage, the company must defend until it determines the fact or issue that excludes coverage. Employers liability insurance is subject to limits of liability as G. Limits of Liability under Part Two analyzed below describes. As a result, this section specifies that the company's duty to defend ends when the limits of insurance are used up. Defense costs are not included in determining when the appropriate limit is used up.
15 E. We Will Also Pay The insurance company also pays a number of costs and expenses as part of a claim, suit, or legal action it defends in addition to other amounts it pays. They include the following: 1. All reasonable expenses the named insured incurs at the company's request. However, this does not include loss of earnings. 2. Premiums for bonds to release attachments or for appeal bonds, up to amounts that this insurance pays 3. Costs of litigation assessed against the named insured 4. Interest on judgments as the law requires. However, this is only until the insurance company offers to pay the amount due. 5. Any and all expenses the insurance company incurs that relate to a claim, suit, or action F. Other Insurance More than one insurance company may be responsible for a particular loss. In that case, this insurance company does not pay more than its proportion or share of costs and benefits covered by all available sources. The other sources may be other insurance companies or self-insurance. All sources must contribute equally until the loss is paid. If the limits of any other insurance policy or self-insurance are used up, all remaining insurance pays in equal shares until the loss is completely paid. This section primarily addresses payments by different insurance based on equal shares. The limits of liability referred to may occur in cases where an employer has a self-insured retention up to a certain amount and excess insurance above that amount. The last sentence states that certain insurance or self-insurance may be used up. This refers to payments that equal the available limit of liability, funds not available due to a carrier's insolvency, or for some other reason. In these cases, any remaining insurance contributes to the loss in equal shares. G. Limits of Liability The insurance company's obligation to pay for damages does not exceed the limits of liability under Item 3. B. on the Information Page. They apply as follows: 1. The Bodily Injury by Accident each accident limit on the Information Page is the most paid for all covered damages due to bodily injury to one or more employees as a result of any one accident. Note: Disease is not bodily injury by accident unless it is a direct result of bodily injury by accident. 2. The Bodily Injury by Disease policy limit on the Information Page is the most paid for all covered damages due to bodily injury by disease. This applies regardless of the number of employees who sustain bodily injury by disease. The Bodily Injury by Disease each employee limit on the Information Page is the most paid for all covered damages due to bodily injury by disease to any one employee. Bodily injury by disease does not include disease that is a direct result of a bodily injury by accident. 3. The insurance company does not pay any claims for damages after the limit of insurance that applies is used up paying claims. Note: Rule 3, Item 14 of the Basic Manual for Workers Compensation and Employers Liability Insurance provides the following standard limits of liability for these coverages: $100,000 Bodily Injury by Accident each accident $500,000 Bodily Injury by Disease policy limit $100,000 Bodily Injury by Disease each employee
16 These standard limits can be increased to higher limits for the additional percentage premium charges in the rules section. Example: Barney throws an appreciation party for his 25 employees and their families. He and his wife prepare the food and bring it to the office. Right after lunch, fifteen employees become violently ill and one dies. The subsequent investigation reveals that Barney mistakenly added caustic cleanser to the gravy instead of flour. When the employees sue him for their injuries, his employers liability is limited to $100,000 Bodily Injury by Accident limit for all injuries sustained. If it had been a disease instead of an accident, the $500,000 policy limit would have applied, subject to $100,000 for each employee. Note: Additional or excess employers liability insurance can be provided under excess or umbrella policies written separately from the Workers Compensation and Employers Liability Insurance Policy. A few states require unlimited employers liability insurance and special endorsements are available to meet those requirements. H. Recovery from Others The insurance company has the named insured's rights to recover its payments made from any party liable for the injury. The named insured must do everything possible and necessary to protect those rights and help the insurance company enforce them. Similar to the same provision in G. Recovery from Others under Part One, this is the subrogation provision that applies to employers liability. The primary difference between the two is that this one does not give the company the named insured's employee's rights of recovery. It is limited to only giving the named insured's rights against third parties. This difference is necessary because the insurance company can acquire the named insured's rights only through the insurance policy. WC Waiver of Our Right to Recover from Others Endorsement waives the company's right of subrogation against designated third parties responsible for an injury. The endorsement schedule is used to list the persons or organizations that the insurance company will not subrogate against. Related Article: Workers Compensation and Employers Liability Insurance Policy Available Endorsements and Their Uses I. Actions against Us The insurance company cannot be sued or have other legal action brought against it unless both of the following apply: 1. The named insured has complied with all policy terms and conditions. 2. A trial and final judgment determined the amount the named insured owes or the insurance company agreed with the amount
17 owed. No party has the right to name the insurance company as a defendant in a legal action brought against the named insured to determine its liability. In addition, the insurance company's obligations do not change if the named insured or its estate becomes bankrupt or insolvent. Note: This provision is the opposite of the "direct action" provision described in H. Statutory Provisions under Part One. In other words, it specifically excludes the right of direct action against the company until these requirements are met. PART THREE OTHER STATES INSURANCE A. How This Insurance Applies 1. Other states insurance applies only if there are one or more states listed under Item 3. C. on the Information Page. Note: This clarifies that if the named insured initiates work or operations in any states listed under Item 3. C. on the Information Page, coverage applies as though that state was listed under Item 3. A. on the Information Page. This includes even minimal contacts that might trigger that state's workers compensation law. 2. If the named insured initiates work or operations in any state listed under Item 3. C. on the Information Page after the policy effective date and there is no other coverage for that state, all policy provisions apply as if the state was listed under Item 3. A. on the Information Page. Note: Coverage under Part Three is not intended to apply to ongoing operations. There is no premium charge, regardless of the extent of the insured's known operations or the number of states involved. A payroll or other premium basis is available only if the named insured actually initiates work or operations in those states. In those cases, the appropriate state rate(s) apply to the premium basis that actually develops during the policy period. 3. The insurance company reimburses the named insured for benefits that state s workers compensation laws require in cases where it is not allowed to pay benefits directly to injured persons entitled to them. Note: The named insured must tell the insurance company any time it initiates work or operations in a state not listed under Item 3. A. on the Information Page. This part lets the insurance company that is not authorized to pay workers compensation benefits to an injured employee in a given state pay them indirectly through the employer. Related Court Case: Coverage Applied to Employee Working Solely at Out-of State Location 4. Coverage does not apply in states and in cases where the named insured has work in any state not listed under Item 3. A. on the Information Page as of the effective date. However, there is a 30-day grace period for the named insured to notify the insurance company about the work. Note: This provision strengthens the notification requirement so that the company can more accurately determine the extent of the coverage it provides. Coverage does not apply to that state if the named insured does not notify the company on a timely basis. B. Notice The named insured must immediately notify the insurance company of any work or operations it begins in any state listed under Item 3.C. on the Information Page. When this occurs, the company endorses the policy to change that state to a state listed under item 3. A. and uses premium audit or other methods to determine a premium basis for it. Part Three is a feature unique to the Workers Compensation and Employers Liability Insurance Policy. The insured employer
18 has coverage available for possible workers compensation exposures in states where it does not now have or expect operations or work. It relates specifically to the "extraterritorial" effect of most state workers compensation laws. These laws apply (or are interpreted to apply) to work-related accidents that occur in both the state in question as well as to accidents that occur elsewhere under certain circumstances as follows: The contract of hire was made within the state The employment was primarily localized within the state Even if the injured employee simply resides in the state Example: An employer has operations in only New York State but sends an employee to Indiana on business. While performing his job in the Hoosier State, the employee sustains serious bodily injury. The employee may be entitled to claim benefits under the Indiana Workers Compensation Law. On the other hand, an employee working for a California employer injured in an accident in California may be able to assert a claim under the New York Workers Compensation Law if he or she was hired in New York State. As a result, most employers that have employment contracts of any kind in various states may need coverage for possible workers compensation exposures in those states. PART FOUR YOUR DUTIES IF INJURY OCCURS The named insured must immediately report any injury that occurs that this insurance might cover to the insurance company. However, the obligations do not end there. Related Court Case: How Late Is Too Late? The following are other required duties: 1. Provide or arrange for immediate medical care and any required services but only as the workers compensation law of the state where the injury takes place requires. 2. Provide the insurance company or the insurance agent the names and addresses of the injured person or persons and the same information for any witnesses to the injury. This is in addition to other information the company may need. 3. Promptly give the insurance company originals of all notices, demands, and any other legal papers that relate to an injury, claim, suit, or other legal proceeding. 4. Cooperate with and help the insurance company investigate, settle, or defend any claim, suit, or legal proceeding to the extent that it requests. Note: There is no limit on the number of times the company may request cooperation and assistance. However, the frequency
19 should not overly burden either party. 5. Do not do anything after an injury or claim occurs that interferes with or disrupts the insurance company's ability or rights to recover from others that/who might be liable for the loss. 6. Do not make any voluntary payments, assume any obligations, or incur any expenses without the insurance company's written approval. Doing so is at the named insured's cost and the company is not required to reimburse it for any unauthorized payments it made. Note: These duties apply to any loss, injury, accident, or damages that occur and that Part One, Part Two, or Part Three cover. Related Court Case: Notice to Workers Compensation Department Also Held to be Notice to General Liability Department PART FIVE PREMIUM This Part describes how and when premium is calculated, when it is paid, and how cancellation affects premium. It also imposes record-keeping requirements on the named insured and gives the carrier the right to inspect and audit the named insured's records that relate to the policy. Related Article: Workers Compensation and Employers Liability Insurance Policy Rating Considerations Related Court Case: Carrier Can Change Classification Code and Charge Increased Premium Retrospectively A. Our Manuals The insurance company determines the premium charge based on its manuals of rules, rates, rating plans, codes, and classifications. It can change its manuals and apply those changes to this policy if it is authorized by law or by a government agency charged with regulating this insurance coverage. As used in this provision, "manuals" has a very specific meaning. Most of the time, the company's manuals of rules, rates, rating plans, codes, and classifications correspond to the manuals NCCI files with the appropriate insurance regulatory authorities on behalf of its member companies in its capacity as a licensed rating or advisory organization. These manuals include the following: The Basic Manual for Workers Compensation and Employers Liability Insurance This manual includes the rules, manual rates or loss costs, rating plans and values, codes, classifications, and premium discounts for all NCCI states. The manual rates or loss costs may be only advisory in states where NCCI is an advisory organization and may not actually be adopted by any given insurance company. The Experience Rating Plan Manual for Workers Compensation and Employers Liability Insurance This manual describes and details how the mandatory experience rating plan works. With it, the named insured's past loss experience is used to calculate a premium modification factor that either increases or decreases the manual premium to the final net premium charged for the current policy period. It also includes rules that govern how to apply the experience modification, the formula to calculate the experience modification, and the numerical values and factors that formula uses. Related Article: Experience Rating in Workers Compensation Insurance The Retrospective Rating Plan Manual for Workers Compensation and Employers Liability Insurance This manual describes and details how the various optional rating plans that modify the premium for a given policy period work. These plans can be applied in addition to experience rating, based on the named insured's actual loss experience during that policy period. As stated above, NCCI prepares and files manuals on behalf of its member companies in states where it is the authorized rating or advisory organization. In a few states, independent rating bureaus prepare and file manuals similar to the NCCI manuals
20 where they are the authorized rating organization. In addition, individual insurance companies may be authorized or required to file their own rates or other manuals in certain states. Here, the reference in the policy means the individual insurance company's manual or manuals. From a strictly legal standpoint, the effect of Part Five A. is to incorporate by reference the various manuals into the insurance policy. The premium provision resembles Part One in that it effectively incorporates the provisions of the various state workers compensation laws into the policy. Manuals are subject to periodic revisions and most states revise rates or loss costs annually. The second sentence of this provision provides that manual changes authorized by law or by a regulatory agency apply to the policy. Rule 1. F. in the Basic Manual for Workers Compensation and Employers Liability Insurance explains how to handle classification changes or corrections. Rule changes usually apply to only policies issued or renewed on or after the effective date of the rule change. On the other hand, changes in manual rates or loss costs may apply to existing policies based on the terms of the rate filing that applies and its approval. In most cases, rate changes due to changes in the benefit provisions of the state workers compensation law are applied to existing policies on a pro rata basis as of the effective date of the rate change. WC Pending Rate Change Endorsement and WC Rate Change Endorsement are the two standard endorsements used with these types of rate changes. Related Article: Anniversary Rating Date Endorsement B. Classifications This provision states that the rate and premium bases for certain business or work classifications are entered under Item 4. on the Information Page. Classifications are based on descriptions the named insured provides for the policy period. Classifications may also be based on the insurance company's (or by others that act on its behalf) inspections of the operations. If the exposures should be classified differently, the insurance company endorses the proper classifications, rates, and premium bases to the policy. Related Article: WC A Information Page Workers Compensation and Employers Liability Insurance Policy It is not always possible to accurately predict the kinds of work the named insured will do during the policy period. However, the insurance company usually assumes all of the named insured's workers compensation exposures during the policy period. As a result, it must estimate the proper classifications that apply at inception. It later confirms or revises those estimates based on information it receives during or after the policy period or based on a physical audit of the named insured's books and records. The named insured's business or operations may change during the policy period or the original premium estimates may not be accurate. In that case, this provision gives the insurance company the right to make any changes necessary that reflect the actual exposures. This provision can be enforced and the ability to do so is well established through previous precedent and court decisions. C. Remuneration The estimated or deposit premium for each work classification is calculated by multiplying the premium basis by the rate for the code and classification that applies. Remuneration or payroll is the usual premium basis and includes all payroll and remuneration paid during the policy period. The remuneration for services falls into two categories: 1. All officers and employees engaged in the work that the policy covers 2. Other persons engaged in work that could make the insurance company liable under the policy's workers compensation part. The contract price for their services and materials can be used as the premium basis if the named insured does not have payroll records for these persons. However, this paragraph does not apply if the named insured proves that the employers of these
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