Grede Foundries, Inc. v. Labor & Industry Review Commission

2012 WI App 86, 819 N.W.2d 850, 343 Wis. 2d 517, 2012 WL 2300374, 2012 Wisc. App. LEXIS 491
CourtCourt of Appeals of Wisconsin
DecidedJune 19, 2012
DocketNo. 2011AP2636
StatusPublished

This text of 2012 WI App 86 (Grede Foundries, Inc. v. Labor & Industry Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grede Foundries, Inc. v. Labor & Industry Review Commission, 2012 WI App 86, 819 N.W.2d 850, 343 Wis. 2d 517, 2012 WL 2300374, 2012 Wisc. App. LEXIS 491 (Wis. Ct. App. 2012).

Opinion

FINE, J.

¶ 1. Grede Foundries, Inc., and Grede Foundries, Inc., c/o Helmsman Management Services, [519]*519Inc., appeal the circuit court's order affirming an order entered by the Labor and Industry Review Commission that awarded Steven C. Northcott a "bad faith" penalty because Grede paid Northcott's worker's-compensation claim late.1 Grede contends that its bankruptcy filing prevented the Commission from imposing the penalty, and, additionally, that there was insufficient evidence to support its finding of "bad faith." We reverse.

I.

¶ 2. Northcott filed a worker's-compensation claim, contending that he was injured in March of 2001 as a result of his job with Grede. Grede and Northcott settled the claim, and the Department of Workforce Development approved the settlement in an order dated June 17, 2009. The order directed Grede to pay Northcott $11,600 plus $2,900 to Northcott's lawyer. The order declared that payment was due "[w]ithin twenty-one days from date" of the order. In February of 2010, a Department administrative law judge found that although payment was thus due by "July 8, 2009," Grede did not pay Northcott "until September 18, 2009, some 72 days after the July 8, 2009 deadline."

¶ 3. Wisconsin Stat. § 102.18(l)(bp) provides, as material:

If the department determines that the employer . .. failed to make payments... as a result of [520]*520malice or bad faith, the department may include a penalty in an award to an employee for each event or occurrence of malice or bad faith.... The department may award an amount that it considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith.

Finding that the delay was in "bad faith," the Department directed Grede to pay Northcott $2,900, and to pay his lawyer $725. The Commission affirmed the penalty. The Commission credited testimony presented by Grede at the hearing before the Department administrative law judge that Grede did not have the money to timely pay Northcott. The crux of its decision, however, was that as a self-insured employer for worker's-compensation purposes, Grede "was required to hold a surety bond for payment of worker's compensation claims!,]" and that it "never took any action to call upon the bondholder to pay !Northcott]'s claim."2 It explained:

[521]*521As long as Grede had no funds, it had a reasonable basis for not making its own payment to the applicant. However, after the department order [affirming the Grede/Northcott settlement] had been issued and Grede realized that it had no funds to make payment, it knowingly lacked a reasonable basis for not immediately initiating proceedings to call upon the surety bondholder to make such payment. Grede ultimately did make payment out of its newly-obtained funds on September 18, 2009, and as noted by the administrative law judge, it is uncertain from the record how long it would have taken the bondholder to actually make payment once it had been contacted. This uncertainty, together with consideration of the length of the delay in payment, led the commission [sic "department"?] and the administrative law judge to infer that the bad faith penalty should be assessed at the rate of 25 percent rather than a higher percentage.

As noted, the circuit court affirmed the Commission.

¶ 4. There is more to this case, however, than a simple order to pay a worker's-compensation claimant by a certain date and imposing a penalty when the payment is late, because Grede filed a Chapter 11 petition in bankruptcy on June 30, 2009, which triggered application of the so-called automatic-stay provisions of 11 U.S.C. § 362. As material here, § 362(a), "applicable to all entities," stays:

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
[522]*522(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.

Section 362(b)(4), however, exempts from the stay, as material here:

the commencement or continuation of an action or proceeding by a governmental unit... to enforce such governmental unit's ... police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit's or organization's police or regulatory power.

¶ 5. Concurrent with its Chapter 11 filing, Grede also sought, as material here, an order from the bankruptcy court: "authorizing, but not directing, [Grede], at its discretion and in accordance with its stated policies, (1) to continue its existing worker's compensation programs and (2) to continue payment of worker's compensation benefits and related expenses with respect to prepetition worker's compensation claims." Specifically, Grede requested an order permitting it "to (1) continue its existing worker's compensation programs and (2) pay worker's compensation benefits and related expenses with respect to worker's compensation claims that were made prior to [June 30, 2009, the date Grede filed its Chapter 11 petition] as they come due."

¶ 6. Grede's June 30, 2009, motion averred that it was a self-insurer for worker's-compensation claims not exceeding $500,000, and that its self-insurance obliga[523]*523tions were "supported by bonds or stand-by letters of credit issued in favor of the states where [Gredel's plants are located." It also averred:

If [Grede] fails to make a required benefit payment the appropriate governing agency in the state in which the claim arose can draw against the bond or letter of credit.!3] This in turn creates a reimbursement obligation owed by [Grede] (together with draw fees and other transactional expenses) to the bank or bond issuer.
In view of the placement of the bonds and stand-by letters of credit to back up [Gredel's obligation to pay worker's compensation benefits, in the first instance benefits will be paid even if not from [Gredel's funds. [524]*524But payment of the claims through the bonds or letters of credit (under which draws must be repaid by [Grede]) will increase [Gredejs outlays for payment of worker's compensation benefits because [Grede] will be required to reimburse the draws and pay the associated bank fees to avoid termination of the letters of credit.

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Bluebook (online)
2012 WI App 86, 819 N.W.2d 850, 343 Wis. 2d 517, 2012 WL 2300374, 2012 Wisc. App. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grede-foundries-inc-v-labor-industry-review-commission-wisctapp-2012.