The issue in this new, unpublished decision is what type of evidence is needed to dismiss CIGA from a lawsuit when "other insurance" is alleged to be available.
State Fund tried to argue that unless the actual insurance policy itself was produced at trial, there was not "substantial evidence" to support a finding that "other insurance" existed as specified under Insurance Code Section 1063.1(c)(9).
The facts involved a general contractor who supplied workers (including the injured worker here) to a subcontractor. The general was insured by Reliance which went bankrupt, bringing CIGA into the picture.
The worker was injured while working on a project being handled by the subcontractor which was insured by State Fund.
At trial, the applicant testified he was paid by the general contractor (covered by CIGA) and knew nothing about the subcontractor.
In an effort to be dismissed from the case, CIGA produced a letter from the WCIRB indicating that State Fund covered the subcontractor (the "other insurance") but did not produce State Fund's actual insurance policy. There was also a stipulation that the subcontractor was a "special employer" in this case.
The WCJ agreed with State Fund that without the actual policy there was no evidence of "other insurance" and awarded the applicant's benefits against CIGA.
Needless to say, CIGA appealed and the Second District reversed in favor of CIGA, holding that "secondary evidence" - such as the letter from the WCIRB which was produced here, as well as stipulations, were sufficient to show "other evidence" and ordered that CIGA be dismissed.
"The WCAB concluded that CIGA was required to produce the SCIF policy at trial to establish "other insurance" covered Carri Construction and that there was no form endorsement excluding special employees. This is incorrect. The relevant terms of an insurance policy may be established by secondary evidence such as discovery responses or admissions."
The case is CIGA v. WCAB (Thomas).
To read the full opinion,
PLEASE CLICK HERE.
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