Agent Scurries to Get Coverage After Workplace Accident
Where, following a workplace accident causing injury to an employee, the uninsured employer called its insurance broker regarding the expected workers’ compensation claim and the broker scrambled to obtain a policy from an insurer dated that same day, without disclosing the existing of the workplace accident, there could be no coverage for the accident, held a Florida appellate court recently [see Normandy Ins. Co. v. Sorto, 2018 Fla. App. LEXIS 15382 (1st DCA, Oct. 31, 2018)]. Reversing a contrary decision by the Judge of Compensation Claims, the appellate court stressed that Florida’s insurance laws preclude coverage for losses that have already taken place.
A worker was taken to the hospital by ambulance on morning, after a Bobcat S300 ran over his foot at the job site. The employer promptly called its insurance agent about the expected claim. That agent had inquired about workers’ compensation coverage several weeks earlier, but had not finalized anything. The agent quickly submitted the paperwork and got coverage with Normandy Insurance Company made effect that same day. The agent did not disclose the injury that had already occurred.
The injured worker’s claim was subsequently filed and Normandy actually accepted it, providing medical care and indemnity benefits. Then it discovered the injury had occurred before the application and it objected to the claim.
Did Coverage Begin at 12:01 a.m. on Day of Accident?
Normandy sought contribution from the general contractor at the work site, Jimerico, Inc., who otherwise would be considered the injured worker’s statutory employer and responsible for providing workers’ compensation coverage for the injury under § 440.10(1)(b), Fla. Stat. (2016). Jimerico’s insurer, Amerisure Insurance Company, argued that according to Normandy’s policy with the employer, Normandy’s coverage began at 12:01 a.m. on the day of the accident, prior to the worker’s accident, and thus Normandy was responsible for covering the injury. The JCC agreed with Amerisure; Normandy was responsible for covering the loss.
Key Question Discussed by Appellate Court
The appellate court indicated the key question was whether a workers’ compensation insurer must cover claims that were known to the insured before procuring coverage, but which were not disclosed to the insurer. The court observed that nothing in the Workers’ Compensation Law, chapter 440 of the Florida Statutes, required new insurers to cover an insured’s prior known losses. Citing prior case law, the court said that an agreement to assume a known loss is not insurance. Insurance is to provide protection against risk. One cannot insure against known losses; there is no risk.