By: Daily Record Staff//October 13, 2011
By: Daily Record Staff//October 13, 2011//
Appellate Division, Fourth Department
Farm Family Casualty Insurance Company v. Brady Farms Inc.
Appealed from Supreme Court, Genesee County
Background: The plaintiff commenced the action seeking a declaration that it has no duty to defend or indemnify the defendant owner and operator of a farm, in connection with fatal injuries sustained by the defendant’s employee. The defendant was insured by a primary policy issued by the plaintiff. The defendant did not have worker’s compensation insurance at that time. The court had granted the defendant summary judgment declaring that the plaintiff is obligated to defend and indemnify the defendant. Also, the court determined that the worker’s compensation award was covered by the policy.
Ruling: The Appellate Division reversed the determination that the plaintiff is responsible for worker’s compensation, funeral expenses and attorney’s fees. The court found that the policy provided coverage caused by an occurrence if a claim is made or a suit is brought. The worker’s compensation claim made on the decedent’s behalf established that the estate of the decedent elected to forego the recovery of damages through a civil action and instead sought to pursue what a claim of worker’s compensation insurance benefits defendant should secured for him. Therefore, the defendant is substituted for the insurer that should have been hired to provide worker’s compensation benefits.
Dan D. Kohane of Hurwitz & Fine, PC for the plaintiff-appellant; Henry R. Ippolito of Chamberlain D’Amanda Oppenheimer & Greenfield LLP for the defendant-respondent