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Rodriguez v. Romero2/28/2005
Heard September 21, 2004
AFFIRMED
This is a workers compensation matter. At issue is which of two insurance carriers, The Insurance Corporation of New York (INSCORP) or Capital City Insurance Company (Capital), is responsible for coverage for injuries sustained by Celestino Rodriguez in a work-related accident on June 27, 2000. The single commissioner held Capital was the responsible insurance carrier; the full commission affirmed. The circuit court reversed and held INSCORP is the responsible carrier. We affirm the circuit court's ruling.
FACTS
Rodriguez was employed performing construction-type labor for Hector Romero, a subcontractor. On June 27, 2000, while installing a new roof on a large commercial building, Rodriguez slipped and fell through a skylight opening, suffering numerous injuries. It is undisputed that Rodriguez is entitled to workers' compensation coverage. The only question is which carrier is responsible.
Romero initially purchased workers' compensation insurance from INSCORP in January 1999. The policy was cancelled in June 1999 for non-payment. In May 2000, Romero called INSCORP'S managing agent, Risk Control, to ask if his policy could be reinstated. Risk Control referred him to one of its carriers, Tad Roberts. On May 19, 2000, Romero faxed his application to Roberts, who forwarded it to Risk Control. Romero sent a partial premium of $704.00 in June 2000.
Sometime thereafter, Roberts became suspicious Romero was "leasing" his employees. Risk Control investigated and determined it was likely Romero was leasing employees. On or about June 16, 2000, Risk Control advised Roberts that Romero's policy should be cancelled. Roberts relayed this information to Romero and told him to seek coverage through an "assigned risk" plan. However, Romero's policy was not cancelled and, instead, INSCORP issued policy # SC0001204200RCS on June 22, 2000, with an effective date of May 19, 2000. On June 23, 2000, Risk Control sent Romero an invoice for the July premium payment.
Meanwhile, having been advised by Roberts to seek assigned risk coverage, Romero went on June 23, 2000 to Capstone Insurance Services in Greenville and applied for workers' compensation coverage. In accordance with assigned risk rules and procedures, Romero's application was sent to Capital, a designated assigned risk carrier. Romero's application for assigned risk coverage made a number of misstatements and misrepresentations, including the averment that he was a new business and had no prior workers' compensation coverage. Not knowing of Romero's coverage with INSCORP, Capital issued policy # 05-WC-0004280/000, effective June 24, 2000. Three days later, on June 27, 2000, Rodriguez slipped through the roof and was injured.
Capital, still unaware of the INSCORP policy, accepted the claim and began providing benefits. It learned of the INSCORP policy on or about August 15, 2000. On August 16, 2000 Capital tendered Rodriguez' claim to INSCORP; Capital simultaneously filed a cancellation form with the National Council on Compensation Insurance (NCCI) asking its policy be voided on the ground that Romero was ineligible for assigned risk coverage because a) he had voluntary coverage, and b) he had made material misrepresentations in his application for coverage. On August 17, 2000, INSCORP sent a "flat cancellation" notice to Romero.
On September 6, 2000, Capital filed a motion to determine coverage. A hearing was held before the single commissioner, who ruled that because Romero had lied in his representations to obtain the policy, Capital's policy should be rescinded and declared void ab initio. Since INSCORP voluntarily iss
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