 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Smith v. First Choice Services6/3/2003
PUBLISHED
State Farm Insurance Company (State Farm) appeals from the opinion and award of the Industrial Commission awarding disability compensation to Harold E. Smith (plaintiff).
State Farm filed a Form 61 dated 30 July 1997 denying plaintiff's workers' compensation claim, stating that plaintiff was "not a covered employee under the Workers' Compensation Act." Plaintiff filed a Form 33 request for hearing dated 27 October 1997. State Farm filed a Form 33R response to request for hearing dated 15 December 1997 stating that defendants were not liable for benefits claimed by plaintiff.
The evidence before the Industrial Commission tended to show that First Choice Services (First Choice) was a small family-owned company in the business of insurance restoration work. Plaintiff was vice-president and secretary of First Choice and was responsible for sales, marketing and estimations. While trying to reach some cartons on 17 April 1997, plaintiff fell off a ladder onto a concrete warehouse floor and fractured both his femur and his left wrist. Plaintiff's average weekly wage was $581.40 at that time.
State Farm began providing First Choice with workers' compensation insurance coverage in 1991. Initially, First Choice elected to exclude its officers from coverage under the policy. Peggy Smith (Mrs. Smith), plaintiff's wife and an employee of First Choice, testified that officers were excluded from coverage to save money because the officers' job requirements made it less likely they would be injured.
Mrs. Smith later revisited the issue of officer coverage with Richard Kepler (Kepler), an independent agent of State Farm. Mrs. Smith testified that when she asked Kepler if adding the officers would "shoot premiums sky high," he responded "not really" because there had been no previous workers' compensation claims against First Choice. Mrs. Smith claimed that Kepler explained that workers' compensation would pay two-thirds of an officer's salary if an officer was injured and unable to work. She also testified that when the policy was renewed, she asked Kepler to "go ahead and add the officers on."
Mrs. Smith testified that after plaintiff was injured, she called Kepler and asked if First Choice should submit a workers' compensation claim. Mrs. Smith said Kepler asked whether there was an officer's exclusion on First Choice's policy, and Mrs. Smith responded that there was not. Mrs. Smith also stated that Kepler then checked his computer to confirm whether there was an exclusion. Upon finding no officer exclusion, Kepler told Mrs. Smith to file a claim for workers' compensation.
Plaintiff was disabled due to the accident and was unable to return to work. Mrs. Smith stated that First Choice voluntarily paid plaintiff one-third of plaintiff's salary. Mrs. Smith testified that First Choice made the payments because she was under the impression that workers' compensation would pay the other two-thirds of plaintiff's salary. Four months after plaintiff's accident, First Choice stopped paying any salary to plaintiff because business had declined in plaintiff's absence and money had become very tight.
Mrs. Smith testified that in July 1997 she received a letter from State Farm denying coverage to plaintiff. Upon receipt of the letter, she went to Kepler's office to inquire about why plaintiff was denied coverage. Kepler said he did not remember a prior conversation between Kepler and Mrs. Smith about adding the officers to the policy because "he talked to so many people he couldn't remember . . . individual conversations."
Although Kepler testified that First Choice's policy did not include officer coverage, h
Page 1 2 3 4 5 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|