FEMA NE WS PHO TO PHO TO B Y ANDREA BOOHER
Everest brought the action to appeals court, because it did not see why the
adjustor was included in the claim. It argued its adjustor was improperly joined
into the court case because the owners had not brought a solid claim against him.
“The acts of the employees or agents are acts of the principal,” said Everest,
and “employees and agents cannot conspire with one another unless they act
outside the scope of their employment or for their own personal benefit.”
The owners did not allege the adjustor and Everest conspired outside the
scope of employment, the insurer argued. The adjustor should not be included.
The court, however, did not agree with Everest’s logic. The adjustor was not
improperly joined, the court confirmed, because he was hired by Everest in the
first place. The claim — and the actions that were taken afterwards — stemmed
from the adjustor’s decisions. The case, the court said, would move to state court
for further investigation.
SCORECARD: An adjustor is equally liable for the suit brought against their
employer. Everest and the adjustor will both be called as defendants.
TAKEAWAY: Employees of one’s company, whether directly working for the
company or hired by contract, represent the company at the time of employment,
making them liable for any lawsuits that may arise from their actions.
NO WAGES LOST DUE TO ‘OCCUPATIONAL DISEASE’
Following the terrorist attacks on september 11, 2001, many clean-up crews were called to the World Trade Center site. Zdzislaw Usewicz worked as an asbestos handler during recovery. Later, however, he
began to feel sick. A treating physician found Usewicz suffered from depression,
asthma, rhinitis, gastroesophageal reflux disease and post-traumatic stress
disorder, all stemming from his time spent on site.
Usewicz filed for workers’ comp with his employer Nozbestos Construction
Corporation, who accepted the claim.
Usewicz was cleared to work under the
condition he avoid lead exposure.
Then, on July 28, 2012, Usewicz was let
go from his job. Nozbestos said Usewicz
could not continue working if he couldn’t
wear a mask. Due to excessive coughing,
Usewicz was unable to keep the mask on
during a full day of work.
Usewicz filed an occupational disease
claim, asserting he had been working
in a continuously lead-contaminated
environment during his employment.
A workers’ comp judge found Usewicz
was last exposed to lead in November 2011
while working for Nozbestos. The judge
also concluded that the occupational disease
claim should be viewed as together with the original workers’ comp claim from
Usewicz’s time spent at the World Trade Center.
As of July 28, 2012, Usewicz had no causally-related loss of earning, said the
judge. His cessation of employment was related to his initial workers’ comp claim,
not lead exposure or occupational disease like he alleged.
In appeals court, physicians testified that while Usewicz was exposed to lead
toxicity throughout his career, the coughing could be linked back to medical
conditions from his work at the World Trade Center. Being an asbestos handler
was also a principal cause of his disability. The appellate court upheld the judge’s
MARIJUANA ‘MODIFICATIONS’ NOT COVERED
Kvg properties, inc. took westfield insurance company to court after the insurer refused to pay for damage done by former tenants. The tenants had been growing marijuana inside KVG’s industrial
business units, which the company rented out. The illegal farming “project” was
revealed to KVG only after DEA agents executed a search warrant. Immediately,
KVG filed eviction actions against the tenants in several units.
KVG also learned the marijuana growing operations seriously damaged its
property: The tenants removed walls, cut
holes in the roof, added HVAC ductwork
and gas lines, and damaged the existing
heaters and air conditioning units. The
walls, floors and ceilings were damaged
due to prolonged exposure to moisture.
KVG obtained eviction orders for the
tenants. Then, the company contacted
its property insurer, Westfield, with the
extent of the damages: $18,183 for the
electrical systems, $74,550 for the HVAC
systems and $418,162 for replacing and
repairing the units in general.
Westfield denied coverage. The policy,
the insurer said, excluded coverage for
illegal or dishonest acts. While marijuana
may be legal at the state level, the insurer
said, it’s still an illegal federal offense. Additionally, unauthorized construction
was not covered under the policy; the tenants removed walls without permits.
In court, KVG conceded that illegal and dishonest activities were excluded in
the policy, however, the company argued the tenants were actually vandalizers
who destroyed the property without KVG’s knowledge. The policy included
vandalism, KVG said, and therefore the damages should be covered by Westfield.
The court dismissed this theory. Instead it found that the Westfield policy was
sound in excluding acts illegal or dishonest in nature. The tenants, while acting
without authority or permission from KVG, were there under the guise they
would be conducting “office and/or light industrial businesses.” Their operations
fell under the dishonest act exclusion.
Further, the court said, the property policy excluded unauthorized
construction. Again, KVG did not condone its tenants’ activities, however its
property still went through unauthorized construction, with walls being removed
and holes being drilled into the roof. The policy, the court concluded, held firm.
SCORECARD: Westfield is not responsible for the property damages caused
by illegal marijuana growers who rented out space from KVG Properties.
TAKEAWAY: When renting out part of one’s business or property, be sure to
review coverages surrounding the behavior and actions of tenants.
ADJUSTOR CONSIDERED PART OF TEAM
The owners of so apartments, llc, learned a wind and hail storm caused damages to one of their rental properties in the state of Texas. They contacted Everest Indemnity Insurance Company to issue a claim.
Everest sent an adjustor to assess the damages, but the property owners were
not happy with the results. They believed the adjustor failed to address all of the
damages done to their property, and the insurer consequently chose not to act.
To make matters worse, the owners alleged, Everest ignored their “pleas for
help,” instead acting unprofessionally.
In the owners’ eyes, their insurer had done the bare minimum. They failed to
accept, deny or pay the claim in a timely manner, and they had sent an adjustor
who “conducted an outcome-oriented investigation and under-scoped [the
In court, the owners pointed to the policy, which stated that Everest would
provide coverage for losses stemming from hailstorm damage. They cited breach
of contract. They also named the adjustor as a defendant, citing civil conspiracy.
SCORECARD: The court determined that Zdzislaw Usewicz’s disabilities
most likely stemmed from a workers’ comp claim from 2001 and not lead
exposure. He will not receive benefits for his occupational disease claim.
TAKEAWAY: Working with hazardous waste can lead to various worker
health and safety issues. Employer best practice is to have safety at the
forefront to avoid claims from even happening.