Selective Insurance Company of America v. State of New York Workers' Compensation Board

102 A.D.3d 72, 953 N.Y.S.2d 368

This text of 102 A.D.3d 72 (Selective Insurance Company of America v. State of New York Workers' Compensation Board) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Selective Insurance Company of America v. State of New York Workers' Compensation Board, 102 A.D.3d 72, 953 N.Y.S.2d 368 (N.Y. Ct. App. 2012).

Opinion

OPINION OF THE COURT

Spain, J.

Petitioners are insurance carriers authorized to provide workers’ compensation insurance in New York. Pursuant to the self-supporting mechanism for the workers’ compensation system, the Workers’ Compensation Board collects assessments from carriers in order to fund the Board’s administrative and [74]*74operational expenses (see Workers’ Compensation Law § 151), the Special Disability Fund (see Workers’ Compensation Law § 15 [8] [h]) and the Special Fund for Reopened Cases (see Workers’ Compensation Law § 25-a). The carriers recover, or offset, these assessments from their insured policyholders through a surcharge, which is included in the insured’s premiums (see Workers’ Compensation Law §§ 15 [8] [h]; 25-a [3]; 151 [2] [a]). The assessments charged to the carriers are calculated by the Board based upon the statutory methodology contained in the Workers’ Compensation Law and without regard to the amount of surcharges collected by the carriers from their policyholders; the surcharges are computed by the carriers in accordance with rules of the New York Compensation Insurance Rating Board (hereinafter NYCIRB) (see Workers’ Compensation Law §§ 15 [8] [h]; 25-a [3]; 151 [2] [c]; Insurance Law § 2313 [NYCIRB is a private coalition of carriers licensed to act as a “rate service organization”]).

From 2001 through 2009, by statute, each carrier’s assessment was allocated by the Board based upon the carrier’s proportionate share of the “total written premiums” (also referred to as direct premiums written) that it wrote the preceding year (see L 2000, ch 510). By contrast, the carriers offset those assessments by collecting surcharges from their policyholders, which were computed based upon “standard premiums” pursuant to NYCIRB’s manual that outlined the methodology for calculating surcharges. The definitions differed materially between “total written premiums” used by the Board to calculate assessments on carriers, and “standard premium” used by the carriers to calculate surcharges recovered from policyholders. There appears to be no dispute that this use of different premium methodologies produced seemingly imperfect results due, in part, to the increased popularity of high deductible premiums, i.e., some carriers collected more in surcharges than they paid in assessments to the Board (i.e., the windfall carriers), while other carriers paid more in assessments than they collected in surcharges (i.e., the shortfall carriers), apparently including petitioners herein.

In 2009, as part of a state budgetary deficit reduction plan, the Legislature amended the Workers’ Compensation Law to provide that assessments, like surcharges, would be allocated based upon a carrier’s proportionate share of total “standard [75]*75premiums”1 (L 2009, ch 56, § 1, part QQ, §§ 1, 2, amending Workers’ Compensation Law §§ 15 [8] [h] [Special Disability-Fund] and 151 [2] [b] [Board expenses]).2 At issue here is that part of the 2009 legislation that also amended Workers’ Compensation Law § 15 (8) (h) (4) (Special Disability Fund) to provide that “[t]he [B]oard is hereby authorized to issue credits or refunds as necessary, in the case of overpayments made to the fund” (L 2009, ch 56, § 1, part QQ, § 1 [emphases added] [hereinafter the credit/refund amendment]). The 2009 legislation also enacted an uncodified provision, effective immediately, requiring windfall carriers—denominated as “affected insurance carrier[s]”—who had in any given year collected surcharges in excess of assessments and held such funds as of January 1, 2009 to notify the Board, which was authorized to demand payment of such funds (within 30 days if attributable to fiscal year “2007 or before” or “as soon as practicable” if attributable to subsequent assessments) (L 2009, ch 56, § 1, part QQ, §§ 3, 4). These recouped funds were to be used to improve the Board’s services, and any balance would be transferred to the state’s general fund. In 2010, the Legislature adopted an additional uncodified statute, effective immediately, providing that windfall carriers must pay to the Board any “excess assessment funds”— defined as any amount of surcharges collected from policyholders in excess of assessments paid to the Board between April 1, 2008 and March 31, 2009 (L 2010, ch 56, § 1, part Q, § 1).

During the years relevant here, 2001 to 2010, petitioners paid the required assessments to the Board and collected surcharges from their policyholders, all in accord with the governing methodologies. In response to an inquiry, petitioners advised the Board by letter in January 2010 that they were not “affected insurance carrier[s]” (L 2009, ch 56, § 1, part QQ, § 3 [a]) but, rather, were shortfall carriers who had paid assessments exceeding surcharges collected (by $4.7 million) between 2001 and 2009. By letter of September 29, 2010, petitioners paid their September 2010 assessments under protest and formally requested a credit or refund based upon the credit/refund [76]*76amendment (see L 2009, ch 56, § 1, part QQ, § 1, codified in Workers’ Compensation Law § 15 [8] [h] [4] [2nd to last sentence]). On January 5, 2011, the Board’s Office of General Counsel sent petitioners an email advising that they were not entitled to a credit or refund. Petitioners then commenced this CPLR article 78 proceeding seeking, among other relief, to annul the Board’s refusal to issue a credit/refund. Supreme Court dismissed the petition, in part as time-barred and, in part, on the merits. Petitioners now appeal.

We affirm. Initially, this special proceeding was not untimely commenced. A CPLR article 78 proceeding must be commenced “within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217 [1]; see Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]). An administrative determination is considered “final and binding” when an agency has “reached a definitive position on the issue that inflicts actual, concrete injury” and administrative remedies have been exhausted (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).

Here, petitioners have not, in fact, challenged the assessments levied (or surcharges allowed) in any given year, the statutory methodology governing their calculations or the 2009 or 2010 legislative amendments. Rather, their challenge is premised on a claimed entitlement—based upon the 2009 amendments—to a credit/refund for the amount by which their assessments paid to the Board exceeded the surcharges collected from policyholders. Given that the Board’s January 5, 2011 notice denying their request for a credit/refund was a final and binding determination as it inflicted an actual and concrete injury on petitioners, who had exhausted their administrative remedies, this proceeding commenced May 3, 2011 was timely (see Walton v New York State Dept. of Correctional Servs., 8 NY3d at 194; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom, of City of N.Y., 5 NY3d at 34).

Likewise, to the extent that the petition seeks relief in the nature of mandamus to compel respondents to issue the requested credit/refund, the four-month “statute of limitations [did] not begin to run until the petitioner demanded] that the official [i.e., Board] act and the official refuse[d]” (Matter of Chevron U.S.A. Inc. v Commissioner of Envtl. Conservation, 86 AD3d 838, 840 [2011]).

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Bluebook (online)
102 A.D.3d 72, 953 N.Y.S.2d 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selective-insurance-company-of-america-v-state-of-new-york-workers-nyappdiv-2012.