Avant v. Willowglen Academy

588 S.E.2d 125, 356 S.C. 181, 2003 S.C. App. LEXIS 143

• Court: Court of Appeals of South Carolina
• Decided: September 15, 2003
• Docket: 3676
• Status: Published

Opinions

CONNOR, J.:

Travelers Property Casualty Company (Travelers) filed a motion with the Workers’ Compensation Commission seeking an order identifying the proper carrier for Marty Avant’s claim. The single commissioner found United Heartland (United) was the proper carrier. The full commission reversed and found both carriers equally liable for the claim. The circuit court reversed in part and ruled Travelers was responsible for Avant’s claim. We reverse.

FACTS/PROCEDURAL HISTORY

Travelers began insuring Willowglen Academy (Willowglen), a subsidiary of a Wisconsin corporation, on August 15, 1994, under an assigned risk policy administered through the National Council on Compensation Insurance (NCCI). Travelers renewed the policy in 1995 and 1996. On June 19, 1997, Travelers issued a quotation to renew the assigned risk policy with the effective dates of August 24,1997, through August 24, 1998. Travelers received partial payment from Willowglen for the premium on July 3, 1997, and received the balance on August 13, 1997. On August 29, 1997, Travelers issued the renewal policy with the effective dates of August 24, 1997 through August 24,1998.

On or about July 7, 1997, Willowglen’s parent corporation renewed its voluntary policy for its Wisconsin holdings with United. Subsequently, Willowglen’s insurance agent, Stan Strelka, evaluated whether to add Willowglen’s South Carolina operations to the United policy. Willowglen and Strelka ultimately decided to add South Carolina to the policy and United issued an endorsement to this effect on either August 27 or 29, 1997. The endorsement stated the effective dates of the United policy were July 1,1997 through July 1, 1998. The necessary notification of this coverage and endorsement was not received by NCCI until December 12, 1997. See 25A S.C.Code Ann. Regs. 67-406(A), (B) (Supp.2002) (stating the insurance carrier shall file a report of coverage of workers’ compensation insurance and NCCI is the authorized agent for filing such reports); 25A S.C.Code Ann. Regs. 67—405(B)(1) (1990) (stating insurance carrier shall file report of coverage as provided in Reg. 67-406). Neither Willowglen nor Strelka notified Travelers of the new voluntary policy. The same insurance agency procured both the assigned risk policy with Travelers and the voluntary policy with United.

On September 6,1997, Marty Avant, an employee of Willow-glen, sustained an injury arising out of and in the course of his employment. Willowglen notified Travelers of the claim. Travelers accepted the claim and began providing benefits. At the time of Avant’s accident, neither Travelers nor United knew of the dual coverage.

Travelers learned of the dual coverage on January 5, 1998. United had also learned of Avant’s claim and the dual coverage in late December 1997 or early January 1998 while conducting a claims review. United’s Vice President of Loss Control, Paul Hindtgen, then suggested changing the effective date of United’s policy to October 1, 1997. Stan Strelka also stated that in his discussions with Willowglen and United’s underwriter in late January 1998, it was mutually decided that it was “logical” to terminate the Travelers policy and begin the voluntary policy on October 1, 1997, given United had not received any claims from Willowglen prior to this date.

Travelers contacted Willowglen by phone on January 15, 1998. Willowglen indicated its desire to cancel the Travelers policy. On January 29, 1997, Willowglen sent a letter to Travelers requesting that its assigned risk policy be cancelled as of October 1, 1997. On February 12, 1998, Travelers requested from Willowglen a policy release and a copy of the declaration page of the replacement policy and advised Willowglen it could not backdate the cancellation until verifying other coverage. Travelers also issued a notice of intent to cancel its policy with an effective date of March 19, 1998. This date allowed for time to give the required notice to NCCI and the Workers’ Compensation Commission. See 25A S.C.Code Ann. Regs. 67-405(E)(1) (1990) (stating a workers’ compensation insurance carrier shall file a notice of termination as provided in Reg. 67-406); 25A S.C.Code Ann. Regs. 67-406(F)(2) (Supp.2002) (stating an insurance termination shall not be effective until after thirty days from the date of receipt by NCCI).

On March 9, 1998, Travelers received its first notice of the voluntary nature of the coverage with United. On this date, Travelers received the policy release from Willowglen requesting an effective date of cancellation of October 1, 1997. Travelers also received a copy of the declaration page from United showing a voluntary workers’ compensation policy in effect from July 1, 1997 through July 1, 1998. On April 2, 1998, Travelers issued a cancellation notice with an effective date of March 19, 1998. Subsequently, on June 4, 1998, Travelers decided to cancel its policy effective on the date of the voluntary policy, as opposed to cancelling the policy on March 19, 1998. Travelers performed an audit and refunded to Willowglen all premiums paid for the assigned risk coverage after July 1,1997.

On May 7, 1999, Travelers filed a motion requesting the Workers’ Compensation Commission to identify the proper carrier for Avant’s claim. In its motion, Travelers asserted a provision of the South Carolina Workers’ Compensation Insurance Plan operated to cancel its assigned risk policy as a matter of law as soon as Willowglen secured voluntary coverage through United. The single commissioner found United was the proper carrier. United appealed. The full commission reversed and determined both insurers intended to provide coverage on the date of Avant’s accident and were equally liable for benefits. Both parties appealed. The circuit court reversed in part and found Travelers was responsible for Avant’s claim because there was dual coverage on the date of the accident and Travelers’ policy had the later effective date. Travelers appeals.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the Workers’ Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). “The appellate court’s review is limited to deciding whether the commission’s decision is unsupported by substantial evidence or is controlled by some error of law.” Hendricks v. Pickens County, 335 S.C. 405, 411, 517 S.E.2d 698, 701 (Ct.App.1999); see Roper Hosp. v. Clemons, 326 S.C. 534, 536, 484 S.E.2d 598, 599 (Ct.App.1997) (“On appeal from the Workers’ Compensation Commission, this court may reverse where the decision is affected by an error of law.”). The commission’s decision must be affirmed unless it is clearly erroneous in view of the substantial evidence on the whole record. Nettles v. Spartanburg School Dist. # 7, 341 S.C. 580, 586, 535 S.E.2d 146, 149 (Ct.App.2000).

LAW/ANALYSIS

Travelers argues the circuit court erred in finding Travelers was the proper carrier for Avant’s claim.

A.

Travelers first contends the circuit court erred in refusing to apply the South Carolina Workers’ Compensation Insurance Plan (WCIP) administered by NCCI. The circuit court found the WCIP does not supersede the provisions of the Workers’ Compensation Act and the regulations promulgated thereunder and does not govern the determination of coverage under the facts of this case. We hold the WCIP does apply to the facts of this case.

The South Carolina General Assembly has granted insurers the right to enter into assigned risk agreements in order to equitably apportion among themselves insurance for applicants who are in good faith entitled to, but are unable to procure, voluntary insurance. S.C.Code Ann. § 38-73-540(A)(1) (2002). Section 38-73-540 further provides that “any mechanism designed to implement such agreement ... must be submitted in writing to the [Director of the Department of Insurance] for approval prior to use____” Id.

The WCIP, as administered by NCCI, is the only “mechanism” in the state for implementing the assigned risk pool and has been approved by the Director of the Department of Insurance for use in this State. The Director “must follow the general policies and broad objectives enacted by the General Assembly regarding the operation of the insurance industry in this State.” S.C.Code Ann. § 38-3-60 (2002). The Director’s duties include “supervising] and regulating] the rates and service of every insurer in this State and fixing] just and reasonable standards, classifications, regulations, practices, and measurements of service to be observed and followed by every insurer doing business in this State.” S.C.Code Ann. § 38-3-110(1) (2002) (emphasis added). While we recognize the General Assembly has not specifically enacted the WCIP, the Director of the Department of Insurance has followed the broad mandate of the General Assembly and has properly acted upon its intent in section 38-73-540 to create an assigned risk plan by approving the WCIP for its use in the assigned risk practice in this State.

The WCIP provides the framework for the assigned risk pool and includes numerous provisions governing assigned risk practice. Without the WCIP there would be nothing guiding assigned risk practice and its procedure, such as an employer’s application process for assigned risk coverage or the assignment of an insurer to a risk. For example, the Workers’ Compensation Commission’s compliance investigator, Joel Scott, testified that the only way an employer can obtain an assigned risk policy is by applying through NCCI and the WCIP and certifying that the employer is unable to obtain voluntary coverage. Moreover, section 38-73-540 obligates assigned carriers to report their experience on business written under the assigned risk plan to the “plan administrator.” S.C.Code Ann. § 38-73-540(0 (2002). NCCI is designated in the WCIP as the “plan administrator” and undertakes to secure the information reported by assigned carriers. For these reasons, the WCIP applies to the facts of this case and the circuit court erred in not applying it.

The specific provision of the WCIP at issue here provides that:

any insurer that wishes to insure an employer as voluntary business may do so at any time. If such insurer is not the assigned carrier, the assigned carrier shall cancel its policy pro rata and the assignment shall automatically terminate as of the effective date of the voluntary insurer’s policy.

The circuit court refused to apply the WCIP provision and instead relied on Regulation 67-409 in finding Travelers solely responsible for Avant’s claim. Regulation 67-409 states, in pertinent part,

When duplicate or dual coverage exists by reason of two different insurance carriers issuing two policies to the same employer securing the same liability, the Commission shall presume the policy with the later effective date is in force and the earlier policy terminated on the effective date of the later policy.

25A S.C.Code Ann. Regs. 67-409(A) (1990).

We agree with the circuit court that the WCIP does not supersede the provisions and regulations of the Workers’ Compensation Act (Act). Instead however, the WCIP should be read in conjunction with the Act and its regulations and be accorded effect under the facts of this case given the WCIP addresses matters where the Act is silent. The WCIP addresses the specific situation of the cancellation of an assigned risk policy upon the effective date of voluntary coverage, whereas Regulation 67-409 generally addresses duplicate policies issued by, rather than assigned to, multiple carriers. See Adoptive Parents v. Biological Parents, 315 S.C. 535, 543, 446 S.E.2d 404, 409 (1994) (“Statutes in apparent conflict should be construed, if possible, to allow both to stand and give effect to each.”); see also Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558, 462 S.E.2d 858, 859 (1995) (“The general rule of statutory construction is that a specific statute prevails over a more general one.”).

Regulation 67-409 applies only where two carriers have issued policies and dual voluntary coverage is in effect at the time of the claim. In this case, however, there was not dual coverage. Pursuant to the WCIP, the Travelers’ assigned risk coverage terminated on July 1, 1997, the effective date of the voluntary policy. Through the application of the WCIP, United became the only carrier with coverage on the date of Avant’s claim, and thus United is responsible for this claim.¹ In addition, the application of Regulation 67-409 would create in this case an unreasonable and unintended presumption that United’s policy terminated on August 24, 1997. Neither Willowglen nor United intended for United’s policy to be terminated.

Paul Hindtgen testified he would never have suggested changing the effective date of United’s voluntary policy to October 1, 1997, had he known the Travelers policy would terminate as a matter of law on July 1, 1997, pursuant to the WCIP.² Moreover, according to Stan Strelka, the agent who procured both policies, his intention was to notify Willowglen and the assigned carrier of the July 1, 1997 change in insurers so that the assigned policy would not be renewed and claims would be sent to United. Strelka stated it was inexplicable why Willowglen “continued to turn claims in to The Travelers rather than turning them in to the proper carrier.”

B.

Travelers argues the circuit court erred in failing to find it performed all statutory and regulatory requirements with regard to cancelling its assigned risk policy. The circuit court stated Travelers did not file a cancellation notice thirty days before Avant’s accident. Thus, the circuit court found the policy issued by Travelers in August 1997 would have been in effect at the time of Avant’s accident and South Carolina law does not allow for retroactive cancellation of an assigned risk policy based on the facts of this case.

The parties involved in this action were unaware of the duplicate policies until late December 1997 or early January 1998. Travelers did not learn Willowglen’s policy with United had been obtained on the voluntary market until after receiving the policy release from Willowglen on March 9, 1998. Initially, Travelers filed a notice of intent to cancel its policy on February 12, 1998, but the effective date of the cancellation was denoted as March 19, 1998, to allow for the thirty-day cancellation period and five additional days for mailing the notice to NCCI. See 25A S.C.Code Ann. Regs. 67—405(E)(1) (1990) (stating a workers’ compensation insurance carrier shall file a notice of termination as provided in Reg. 67-406); 25A S.C.Code Ann. Regs. 67-406(F)(2) (Supp.2002) (stating an insurance termination shall not be effective until after thirty days from the date of receipt by NCCI).

However, once Travelers became aware of the voluntary coverage, it then completed the pro rata cancellation pursuant to the WCIP back to July 1, 1997, the date the voluntary coverage went into effect. Travelers cancelled its policy in accordance with the WCIP and refunded all of the premiums earned during the time of dual coverage. The WCIP allows for this retroactive cancellation. Thus, the trial court erred as a matter of law in finding Travelers did not properly cancel its assigned risk policy and that retroactive cancellation was not allowed based upon the facts of this case.

C.

Travelers argues the circuit court erred in finding the parties mutually agreed Travelers would be responsible for claims prior to October 1,1997, and that United would only be responsible for claims after that date. The substantial evidence in the record does not support this finding of fact by the circuit court. See Baggott v. Southern Music, Inc., 330 S.C. 1, 5, 496 S.E.2d 852, 854 (1998) (“Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached to justify its action.”).

Hindtgen testified he suggested changing the effective date of United’s policy to October 1, 1997. Hindtgen thought this would be the “logical” thing to do since Travelers was already handling claims made prior to this date. Upon learning of the two policies in effect, United informed Stan Strelka that it had begun to receive claims from Willowglen after October 1,1997. After Strelka discussed the situation with United’s underwriter and Willowglen, they mutually decided that it was “logical” to terminate the Travelers policy and begin the voluntary policy on October 1, 1997, given United had not received any claims from Willowglen prior to this date.

The record is clear the only reason Travelers handled claims prior to October 1, 1997, is because Willowglen had mistakenly sent the claims to Travelers³ and Travelers had not been notified of the voluntary policy issued by United. There is no evidence Travelers agreed to an arrangement where it would handle claims made prior to October 1, 1997. Hindtgen never spoke with anyone at Travelers about this arrangement and admitted no one from Travelers had done anything to lead him to believe Travelers agreed to handle claims made prior to October 1,1997.

Moreover, Travelers sent a letter to Willowglen on June 5, 1998, which stated that the assigned risk coverage terminated on the effective date of the voluntary insurance. Pursuant to this, Travelers cancelled Willowglen’s policy back to July 1, 1997. This is a clear statement from Travelers that it never consented to providing coverage for claims originating before October 1,1997.

D.

Travelers argues the circuit court erred in failing to find that it was the negligence and inaction of United which caused dual policies and the resulting dispute in this matter.

We need not address this issue because the operation of the WCIP precluded dual policies on the date of Avant’s accident. Therefore, any negligence or inaction on the part of United in making the proper filings is irrelevant to this coverage dispute.⁴

CONCLUSION

Accordingly, based on the foregoing reasons, the decision of the circuit court is REVERSED. United is the proper carrier and is responsible for Avant’s claim.

REVERSED.

HUFF, J., concurs and ANDERSON, J., dissents in a separate opinion.

1 . Moreover, as a policy matter, to deny the effect of the WCIP in this case would encourage voluntary insurers to receive premiums and set effective dates prior to the effective date of an assigned risk policy.

2 . It should also be noted that the record does not definitively show that United made the proper filing with NCCI changing the effective date of its voluntary policy, nor did United ever cancel its policy. See 25A S.C.Code Ann. Regs. 67-406(D) (Supp.2002) (stating the insurance carrier shall file with NCCI a report of coverage and endorsements within thirty days of the policy’s effective date). Thus, the effective date of United's policy remains July 1, 1997.

3 . Strelka stated Willowglen’s intent, through his agency, was to place its workers' compensation insurance in the voluntary market and allow the Travelers policy to lapse. However, Willowglen mistakenly paid premiums to Travelers upon receiving the renewal notice.

4 . In any event, in the absence of the WCIP, any negligence or inaction by United would not have prevented dual policies on the date of Avant's accident. United did not decide until, at the earliest, August 27, 1997, to add Willowglen's South Carolina operations to its coverage. At this time the Travelers policy was already in effect. Even if United had given Travelers notice of its policy on August 27, 1997, and Travelers had immediately started cancellation of its policy, the cancellation would not have taken effect until thirty days later. See S.C.Code Ann. Regs. 67-406(F)(2) (Supp.2002) (stating an insurance cancellation shall not be effective until after thirty days from the date of receipt by NCCI of the cancellation notice).