American Motorists Insurance Co. v. Worker's Compensation Board

819 N.E.2d 485, 2004 Ind. App. LEXIS 2575
CourtIndiana Court of Appeals
DecidedDecember 21, 2004
DocketNo. 93A02-0402-EX-186
StatusPublished
Cited by1 cases

This text of 819 N.E.2d 485 (American Motorists Insurance Co. v. Worker's Compensation Board) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Motorists Insurance Co. v. Worker's Compensation Board, 819 N.E.2d 485, 2004 Ind. App. LEXIS 2575 (Ind. Ct. App. 2004).

Opinions

OPINION

CRONE, Judge.

Case Summary

Appellant American Motorists Insurance Company, a member of the Kemper Insurance Companies ("Kemper"), appeals the order of the Worker's Compensation Board ("the Board") that Kemper is liable under its $3,000,000 surety bond ("the Bond") for all the worker's compensation liabilities of Bethlchem Steel Corporation ("Bethlehem") arising from personal injury dates that occurred from August 1, 1979, to April 30, 2008. We affirm.

Issue

We restate the issue Kemper presents as whether the Board erred in determining the extent of Kemper's liability under the Bond.

Facts and Procedural History 1

By way of introduction, Indiana Code Section 22-3-2-5(a) of the Worker's Compensation Act ("the Act") provides that every employer bound by the Act's compensation provisions "shall insure the payment of compensation to the employer's employees and their dependents ... or procure from the [Board] a certificate authorizing the employer to carry such risk without insurance." The statute further provides, "While such insurance or such certificate remains in force, the employer or those conducting the employer's business and the employer's worker's compensation insurance carrier shall be liable to any employee and the employee's dependents for personal injury or death by accident arising out of and in the course of employment only to the extent and in the manner" provided by law. Ind.Code § 22-3-2-5(a). Indiana Code Section 22-3-5-l(a) states that these employers must either obtain worker's compensation insurance through an outside entity or furnish to the Board proof of their financial ability to pay such compensation directly as provided by law. The Board "may require [487]*487the deposit of an acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incurred." Ind.Code § 22-8-5-1(b). The forms for such bonds are promulgated by the Board. Finally, Indiana Code Section 22-3-5-3(a) provides that whenever an employer has complied with these self-insurance requirements, the Board "shall issue to such employer a certificate which shall remain in foree for a period fixed by the [BJoard[.]"

Beginning August 1, 1979, Bethlehem was self-insured for its worker's compensation Habilities in Indiana. On August 31, 2000, agents for Bethlehem and Kemper executed the Bond. Kemper never executed another bond on Bethlehem's behalf, but it did accept a second premium from Bethlehem in 2001. Bethlehem filed for Chapter 11 bankruptcy on October 15, 2001.

In a letter to self-insured employers dated May 28, 2002, Board Chairman G. Terrence Coriden enclosed a revised surety bond form and renewal application. The letter stated that the revised bond form "must be fully executed and submitted with [the employer's] renewal application." Appellant's App. at 86. On July 31, 2002, Bethichem filed its self-insurance renewal application with the Board but did not submit a fully executed revised bond form.2 In the renewal application, Bethlehem listed the Bond as its security and stated, "The current bond listed above remains in effect. The bonding company is currently reviewing the revised [surety bond form]." Id. at 116. On November 18, 2002, the Board issued Bethlehem a certificate of self-insurance with an expiration date of August 31, 20083.

Bethlehem stopped paying its worker's compensation liabilities after April 30, 2003, when it apparently ceased operations. On June 11, 2003, having been "duly advised by representatives of [Kem-per] that Kemper [was] willfully refusing to pay claims for and on behalf of [Bethlehem] as required by the Indiana Worker's Compensation Act and [the Bond], for claims arising after September 1, 2002[,|" the Board issued a rule to show cause against Kemper. Id. at 6. The Board held a hearing on the matter on November 26, 2003.3

On January 28, 2004, the full Board issued its final order, which reads in pertinent part as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Full Worker's Compensation Board of Indiana, having sworn witnesses, admitted evidence at the hearing, heard arguments of counsel, and being duly advised in the premises therein, now finds:
1. On November 18, 2002, Bethlehem Steel Corporation (hereinafter, "Bethlehem") was issued a Certificate of Self-Insurance by the Worker's Compensation Board of Indiana for its 2002 policy year renewal.
2. On August 31, 2000, American Motorists Insurance Company issued surety bond number 3SM 961 084-00 [488]*488(hereinafter, "the bond") on behalf of Bethlehem.
3. American Motorists Insurance Company is a member of Kemper Insurance Companies (hereinafter, "Kem-per.")
4. The bond was issued on the Revised 2000 SI-2 Surety Bond form as promulgated by the Worker's Compensation Board.
5. As provided by condition number one of the bond, the surety's obligation under the bond extends to all past, present, existing and potential liability of the principal regardless of dates of injuries.
6. As per the testimony of Robert A. Fanning, Director of the Indiana Self-Insurers Association, this type of bond is known in the surety industry as a "last-on" bond form. A last-on bond form means that the current bond covers all past, present and future liabilities regardless of the issuance date of the current bond.
7. Kemper's obligation under the bond extends to all worker's compensation liabilities of Bethlehem with injury dates prior to September 1, 2000, which was the date of issuance of the bond.
8. Kemper does not dispute its liability under the bond for injuries which occurred on and between September 1, 2000 and August 31, 2001.
9. Kemper's obligation under the bond extends, additionally, to all worker's compensation liabilities of Bethlehem with injury dates on and between September 1, 2000 and August 31, 2001.
10. Per the testimony of Natalie Fier-ek, administrator [of] the Indiana Self-Insurance Program, no other surety company writing bonds on behalf of the self-insured employers in the State of Indiana have [sic] inter-
preted the language of the Revised 2000 SI-2 Surety Bond Form in the same manner as Kemper.
11. As set forth within the conditions of the bond, the "bond shall be continuous in form and shall remain in full force and effect unless terminated in the manner hereinafter provided."
12. Further, the language of [the] bond is as follows:

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Related

In Re Kemper Ins. Companies
819 N.E.2d 485 (Indiana Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
819 N.E.2d 485, 2004 Ind. App. LEXIS 2575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-motorists-insurance-co-v-workers-compensation-board-indctapp-2004.