State News : New York

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New York

HAMBERGER & WEISS LLP

  (716) 852-0003

 

On May 4, 2016, the Board announced that it has filed a Notice of Appeal to the Court of

Appeals from the decision of the Appellate Division, First Department in American Economy Insurance

Co. et al. v. State of New York, et al, 2016 N.Y. Slip Op. 02924 (First Department 4/14/16). As

reported in our Special Alert of 4/21/16 (below), that decision held that the closure of the Reopened

Case Fund under WCL §25-a as of 1/1/14 was unconstitutional and thus null and void, such that the

§25-a Fund was reopened.

The Board’s appeal effects a stay of the Appellate Division decision, such that the Board will not

adjudicate any claims for transfer of liability to the Reopened Case Fund pending the Court of Appeals

decision.

In its Subject No. 046-851 of yesterday, the Board confirmed that it would accept, but hold in

abeyance, any and all applications for transfer of liability to the §25-a Fund, including Requests for

Further Action (RFA-2s) and requests made on the record at hearings, pending decision from the Court

of Appeals.

The recommendations made in our 4/21/16 Special Alert remain the same. Whether at hearings

or through RFA-2s, you and your counsel should make claims for transfer of liability to the §25-a Fund

on qualifying cases. This will assure that your requests are timely made and can be pursued later in the

event the Court of Appeals affirms the decision of the Appellate Division reopening the §25-a Fund.

Please contact us if you would like to further discuss any of these developments or if we can

assist you in your efforts to transfer qualifying claims to the Reopened Case Fund.





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April 21, 2016

SPECIAL ALERT: APPELLATE COURT REOPENS

WCL §25-A REOPENED CASE FUND


On April 14, 2016, the Appellate Division, First Department in New York City rendered a

decision in American Economy Ins. Company et al. v. State of New York, ___A.D. 3d ___ (1st Dept.

2016) (Index 156923/13). The Court held that the amendment to WCL §25-a [1-a] enacted as part of the

Business Relief Act of 2013, which closed the WCL §25-a Fund to new claims effective January 1,

2014, was unconstitutional.

ANALYSIS

The Court found that insurance policies issued before October 1, 2013 charged premiums

premised on the assumption that reopened claims may be shifted to the Special Fund for Reopened

Cases under WCL §25-a. For policies issued on or after October 1, 2013, the Department of Financial

Services approved an increase in premiums to cover the additional liability resulting from the closure of

that Fund.

Policies are occurrence based, covering accidents that occur during policy term. A claim for

benefits on a pre-10/1/13 accident made after 1/1/14 would still be covered by the policy in force at the

time of the accident. The premiums paying for that policy assumed that liability for reopened claims

may be shifted to the Reopened Claim Fund under §25-a. The Court agreed that the closure of the §25-a

Fund increased liability on carriers, which they could not recover with increased premiums, creating an

unfunded liability.

The Court held, therefore, that as to carriers with policies issued before 10/1/13, the closure of

the §25-a Fund constituted an illegal retroactive impairment of an existing contractual obligation and

imposition of unfunded liability. Thus, the Statute (WCL §25-a [1-a]) violated the Contracts and Taking

Clauses of the U.S. Constitution.

The lawsuit was brought solely by insurance carriers and the Court’s ruling specifically applied

only to insurance carriers with policies issued before 10/1/13.

Nevertheless, we submit that, in finding the amendment to §25-a[1-a] to be unconstitutional, the

Court rendered the closure of the Fund null and void. Thus, the §25-a Fund is open and we recommend

that insurance carriers and self-insured employers alike apply for §25-a relief on qualifying cases.

We assume that New York State will appeal the Appellate Division, First Department decision to

the Court of Appeals. Decision by the Court of Appeals cannot be expected for many months.

Meanwhile the Appellate Division decision is the law and the §25-a Fund should be considered

reopened.

RECOMMENDATIONS

1. Closed cases: Apply to reopen (RFA-2) and make your claim for §25-a relief on any case that

would qualify (greater than 7 years since D/A and 3 years since last payment of indemnity) citing

American Economy Insurance Company.

2. Cases closed with indemnity only WCL §32 Settlements: Apply to reopen and make your

claim to shift medical liability to the §25-a Fund on qualifying cases, citing American Economy Ins. It

is recommended that on these cases in particular you consult with counsel regarding allocation and other

issues before attempting reopening.

3. Cases in which WCB already found §25-a did not apply because of the supposed closure of

the Fund: Consider applying to reopen the claim, citing American Economy Ins., and seeking

reimbursement from the Reopened Case Fund for payments that should have qualified for §25-a relief.

4. Cases in which you did not seek §25-a relief because of assumption the Fund had been

closed 1/1/14: Consider applying to reopen and seeking reimbursement from the Special Fund.

We remain ready and eager to consult with you and assist you in your efforts to transfer your

liability on qualifying claims to the newly revived Reopened Claim Fund under WCL §25-a.