Mikel v. Pott Industries/St. Louis Ship

910 S.W.2d 323, 1995 Mo. App. LEXIS 1674, 1995 WL 578203
CourtMissouri Court of Appeals
DecidedOctober 3, 1995
DocketNo. 64996
StatusPublished
Cited by4 cases

This text of 910 S.W.2d 323 (Mikel v. Pott Industries/St. Louis Ship) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mikel v. Pott Industries/St. Louis Ship, 910 S.W.2d 323, 1995 Mo. App. LEXIS 1674, 1995 WL 578203 (Mo. Ct. App. 1995).

Opinion

GRIMM, Judge.

In this workers’ compensation case, Midland Insurance Company, employer’s insurer, became insolvent before employee filed his asbestosis claim. Pursuant to § 375.785, RSMo 1986,1 the Missouri Insurance Guaranty Association2 (MIGA) participated in the proceedings. The Labor and Industrial Relations Commission awarded employee compensation and ordered MIGA to pay the award.

[325]*325MIGA appealed, raising four points. Following opinion by this court, the supreme court ordered transfer. In Mikel v. Pott Industries/St. Louis Ship, 896 S.W.2d 624 (Mo. banc 1995), the only point the court determined was that Commission has jurisdiction to determine whether employee’s claim is a covered claim within the meaning of § 375.785.3(2). Id. at 627. The supreme court retransferred the appeal to this court for consideration of the remaining three points.

In those points, MIGA contends that (1) Commission has no personal jurisdiction over it; (2) its due process rights were violated; and (3) employee’s claim is barred because no claim was presented prior to the claim bar date. We disagree and affirm.

I. Background

On April 3, 1986, the New York Supreme Court declared Midland Insurance Company insolvent. That court appointed the New York Superintendent of Insurance' as liquidator. Further, the court set April 3, 1987 as the last day to present proofs of claims.

The liquidator sent proof of claim forms to employer. Instructions on the forms directed employer, as a former policyholder, to “check the appropriate box or boxes below. No amount need be stated.”

The form contained two boxes a policyholder could check. One indicated, “Claim is made for policyholder protection up to the limits of the policy.” The other said, “Claim is made for return of unearned premium.” Employer checked both boxes.

In addition, the form stated that if “the amount of the claim is unknown, the amount may be omitted or insert the words ‘Unstated Amount.’ ” Employer wrote in “Unstated Amount.”

Employee worked for employer from 1966 until 1984, when employer went out of business. In June, 1987, employee first learned that he had asbestosis.

In January, 1989, employee filed his claim. The Division of Workers’ Compensation sent a copy of the claim to “Midland Ins e/o MO Insurance Guaranty Fund.” MIGA referred the file to the Kortenhof and Ely law firm. On February 23, 1989, Robert T. Hart of that firm filed an answer. The answer indicated the name of the insurer was “Midland Ins. Co. (in insolvency) c/o GAB Business Services.” GAB Business Services was MIGA’s servicing agent.

At the direction of MIGA Mr. Hart defended employee’s claim for over a year. However, on April 11, 1990, MIGA’s claim manager wrote employer that it was no longer going to defend the claim. The letter advised employer that because it did not file a specific proof claim for employee’s claim with the liquidator before the April 3, 1987 bar date, MIGA was denying employer’s request for coverage.

Further, the letter said that employer had until April 25, 1990, to retain counsel. At that time, MIGA was going to “instruct Mr. Hart to withdraw as counsel for the defendant Pott Industries.”

Hearings on the claim were held on four days stretched over two years. The first hearing was on May 14, 1990. The record and transcript reflect that Mr. Hart appeared on behalf of the employer and insurer.

At the conclusion of that hearing, employee’s attorney asked the ALJ to take notice that no withdrawal had “been filed by the firm of Kortenhof and Ely through the date of this hearing.” Mr. Hart replied that they “always have and still do represent Pott Industries.” Later, Mr. Hart said that he “was never in the case for Missouri Insurance Guaranty Association, so therefore I can’t withdraw from them.”

At that May hearing, employer’s former president testified that employer had its workers’ compensation insurance with Midland from January, 1977, until its insolvency in 1986. He identified the proof of claim forms filed with the liquidator and the liquidator’s acknowledgement of them.

Further, he testified he filed the proof of claim forms as a general claim “to apply to claims which were not yet filed, but for which the statute [of limitations] had not yet run.” MIGA does not dispute that the forms were timely filed with the liquidator.

[326]*326The next hearing was on June 18, 1990. At that time, Mr. Hart appeared on employer’s behalf. James Kennedy and Gerre Langton appeared for MIGA and MIGA’s claims manager. Mr. Kennedy objected “to MIGA being a party in this particular claim.” However, the ALJ overruled the objection.

MIGA’s claims manager testified that Midland Insurance Company is a member insurer of MIGA. She stated that when a workers’ compensation claim comes to MIGA, MIGA sends the file to GAB to handle. Also, MIGA assigns an attorney to defend the employer and the member insurer.

Further, she said, “MIGA is not normally named as a party,” but MIGA pays for the attorney she selects, as well as any costs and benefits awarded. According to the statute, she said MlGA stands “in the shoes of the member insurer” and pays “what benefits they would have owed had they not become insolvent.” Mr. Kennedy participated and made objections during the claims manager’s testimony.

At the conclusion of the claims manager’s testimony, the ALJ indicated he was going to draft a proposed order naming MIGA as a party. He said he would give each side fifteen days to support or oppose the proposed order, at which time he would enter his order.

On July 20, 1990, the ALJ found that MIGA was a proper party to the proceedings. He further ordered MIGA to defend the claim and to “pay whatever claims may be deemed warranted at later hearings.”

The next hearing was on February 27, 1992. At that hearing, Mr. Kennedy made a special appearance on behalf of MIGA At this hearing, the employee testified and was cross-examined by both Mr. Hart and Mr. Kennedy. As MIGA’s appeal does not raise any issues specifically directed to the employee, there is no need to set out his testimony.

At the conclusion of employee’s testimony, Mr. Kennedy asked for “an additional ten days in which to submit any additional evidence deemed necessary on the issues as they relate to MIGA.” His request was granted.

The next and final hearing was held on March 2, 1992. At that time, employee, employer, and MIGA each introduced exhibits. In addition, Mr. Kennedy on behalf of MIGA, called MIGA’s claims manager as a witness. Among other things, she said that prior to Union Gesellschafi Fur Metal Indus. Co. v. Illinois Ins. Guaranty Fund, 190 Ill.App.3d 696, 138 Ill.Dec. 21, 546 N.E.2d 1076 (1989), if a liquidator indicated that a general proof of claim was timely filed, MIGA accepted the claim as timely filed.

However, after the Union Gesellschafi case became final, MIGA reexamined its files. MIGA then decided to deny claims if a specific claim had not been filed before the bar date.

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Related

Lewis v. City of University City
145 S.W.3d 25 (Missouri Court of Appeals, 2004)
Missouri Property & Casualty Insurance Guaranty Ass'n v. Pott Industries
971 S.W.2d 302 (Supreme Court of Missouri, 1998)

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910 S.W.2d 323, 1995 Mo. App. LEXIS 1674, 1995 WL 578203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mikel-v-pott-industriesst-louis-ship-moctapp-1995.