*1 pervisory carrying staff the course of out In ruling applicability of section 7114(a)(2)(B) personnel responsibilities, their the OIG scope turns on the of the inter- agent “representative” rogation, is not a ruling of the em- we make no as to whether ployee’s agency purposes agents for specify of section OIG in advance the sub- 7114(a)(2)(B). ject matter of interrogation. their Our rul-
ing means that agents the OIG disregard the Weingarten protections agent peril: Just as an FBI at their questioning a if it is later employee concerning employee’s inquiry DOJ determined that the al concerned leged beyond matters “represen scope functions, criminal conduct would of IGA risks a purposes, finding tative” of the DOJ for some OIG of an but unfair labor practice purposes 7114(a)(2)(B), possible prohibition and a not for the of section against taking agent, against action pursuing employees OIG bona fide func IGA on the tions, by Weingar similarly interrogation.9 basis of the not limited In view of the ten Thus, scope functions, provision. however, broad of agree we do not IGA risk questioning by the Third and Eleventh agent Circuits OIG with- 7114(a)(2)(B) apples presence out the questioning by representative of a union 7114(a)(2)(B) agent simply would violate inquiry OIG because the con seems re- “possible mote. employees cerns misconduct” of “in work,” DCIS/FLRA,
connection with their 100, at F.2d or because the information Conclusion might support obtained be used “to adminis reasons, For petition these the FLRA’s actions,” disciplinary trative or FLRA/ enforcement is denied. NASA, DCIS/FLRA, 120 F.Bd at 1213. In interrogated employees suspected were shooting through window the home DCIS/FLRA, see supervisor, of a 855 F.2d at FLRA/NASA,
95, planning violence co-workers, FLRA/NASA,
against 120 F.3d
at 1210. pending interroga ease involves HABER, Haber, Jordan Debbie tion scope about matters within the of bona Plaintiffs-Appellees, IGA, fide functions of the and there is no agents indication that OIG were called in
merely questioning to conduct normally un ST. PAUL GUARDIAN INSURANCE supervisory personnel. dertaken DOJ COMPANY, Defendant- employees One set of questioned was about Appellant. allegations offenses, of serious criminal in Nos. Docket 97-7169. acceptance cluding the of bribes. The other employees questioned set of was about viola Appeals, United States Court tions of the District INS Director’s Second Circuit. prohibiting INS detention enforcement offi Argued Sept. 1997. purchasing cers from carrying personal or firearms. We therefore conclude that sec Decided Feb. 7114(a)(2)(B) inapplicable to the in terrogation any the INS
questioned ease, in this and that none of the
respondents committed a ULP. remedy
9. One element agents Inspector of the FLRA’s order in of the Office of the General.” DOJ-INS-NY, prohibit respondents this case is to See 1996 WL at *9. We "tak[ing] disciplinary [the other action intimate provision no views on whether interrogated employees] as a result of infor- would he valid in a case to which section acquired 7114(a)(2)(B) mation applied. as a result of their examinations *3 Joseph Cayea, Klepner
Donald Cayea, & City, New York for Plaintiffs-Appellees. Flicker, Flicker, L. Garelick & Asso- Keith dates, City, New York for Defendant-Appel- lant. PARKER,
Before: ALTIMARI and KEITH*, Judges. Circuit ALTIMARI, Judge: Circuit Plaintiffs-appellees Dr. Jordan Haber and (“the Habers”) Debbie Haber filed a declara- tory-judgment against action defendant-ap- pellant Compa- Guardian Insurance (“St. Paul”) ny seeking coverage under their (the “Policy”) homeowner’s for their liability for workers’ (“Netus”), injured Florine Netas who was during employment the course of her as the housekeeper. Habers’ live-in Policy con- tained a so-ealléd “HO-90 Endorsement” (the “Endorsement”), meaning of which dispute. the focus of this The United States District Court for the Southern Dis- J.) trict (Sotomayor, of New York deter- mined that an in the Endorsement Policy should be construed Paul, accordingly Paul to ordered St. provide coverage. For the reasons discussed below, we affirm.
BACKGROUND Before the Habers moved into their new house, they Larry Liquori, contacted Mr. broker, their insurance to obtain insurance. Liquori Jacka-Liquori was a broker with the Agency, agent anwas of St. Paul. Dr. Liquori Haber in January met twice 1990 to discuss the Habers’ insurance needs. office, They in Liquori’s first met where Dr. Haber his noted need for extra * Keith, Judge, Hon. Damon J. United States Court nation. Circuit, Appeals sitting by desig- for the Sixth substantially was a “residence em- determined that Netus house would be
since his new meeting ployee” one. the terms of the Endorsement than his old This larger new therefore prompted Liquori to visit the Habers’ and that were entitled the Habers visit, First, told During that Haber it found Netus coverage. house. Dr. week, housekeeper who his live-in Liquori about hours a worked less than days Next, working five He week. satisfied first condition. the court testified, “I him the house. He showed of the second condition found that the terms house, through the he saw where walked warranting an examination ambiguous, were living, going to housekeeper was interpretations all____ every knew it He saw room. He parties. The court concluded offered According including room.” [Netus’s] room interpretation of En- the Habers’ Haber, him in- Liquori assured after Dr. it constituted dorsement—that *4 going that “I’m to cover specting the house coverage for Netus—was the election of February issued you.” St. Paul On interpretation, and that the more reasonable Policy Habers. the second in the Endorsement had condition rejected The court therefore satisfied. been 25, 1993, fire in the May a broke out On argument Paul’s that the Habers’ inter- St. sterilizing home when Netus was Habers’ pretation contrary was of the Endorsement nipples in a the stove. baby strainer on bottle 3420(j)(l), § to New Law York Ins. fire, extinguish the attempting to the While language of found that the legs, burning fell on one of Netus’s strainer 3420(j)(l) to construe was was difficult and sub- causing severe burns. Netus received not as Paul contended. restrictive as St. injuries, treatment for her stantial medical filed a com- subsequently she workers’ (1) appeal, argues that On the St. pensation claim the Habers. benefits finding voluntary a district court erred $150,000. expenses totaled medical some Her (2) coverage; election the district court 21,1993, August St. Paul filed a Notice On in interpreting erred the Endorsement con- Controversion, denying coverage under (3) 3420(j)(l); trary to the dis- Facing poten- Policy. Netus’s claim and finding trict court’s that Netus worked less declaratory liability, the Habers filed this tial than a hours week errone- against St. Paul in district judgment action disagree. ous. We court, requiring Paul to seeking an order provide coverage under terms DISCUSSION provided Policy. for Endorsement in their heading The Endorsement’s reads “Work- whether We must determine Netus’s Em- Compensation, ers’ Certain Residence position with the Habers satisfied the two ployees.” Endorsement “resi- The defines being employee” conditions of a “residence satisfy those employees” dence as who Re under terms of the Endorsement. (1) following “engaged two conditions: condition, garding both the second sides employment of less 40 hours regular agree York that under New Workers’ Com (2) week”; “defined New York pensation employees such as Law domestic compensation law workers’ employees for generally Netus are whom compensation workers’ benefits whom pro compensation workers’ Among provided.” things, other must be 2(4) Comp. Law vided. See N.Y. Workers’ “all covers Habers for Endorsement 1992). (McKinney parties agree, The also [they legally hable damages for which are] however, that domestic can be bodily injury by a cov- because of sustained brought class of workers for whom within the employee.” key issue ered residence. employ if an such benefits must be court was Netus facing the district whether voluntarily er to cover them. id. elects See employee” under was a covered “residence 3(1) 19), (Group inquiry §§ 50. The central of the Endorsement. terms maintain, whether, is the En as the Habers trial, opinion election of After a bench an oral dorsement constituted .a 21, 1997, If it January court for Netus. does constitute dated district 564, 574, 1504, 1511-12, an em- coverage, then Netus would be U.S. 105 S.Ct. such provided” “must be L.Ed.2d 518 ployee for whom benefits laws, compensation under the workers’ Ambiguity satisfy second condition of “resi- employee” in dence the Endorsement. The second condition of the Endorse ment states that a residence is Paul maintains that the Habers’ inter- someone who is “defined under the New pretation contrary York Workers’ Law as an em parties’ intentions and violates New York ployee for whom workers’ ben 1985), 3420(j)(l) (McKinney Insurance Law provided.” Although efits must be this con requires policies to con- homeowner’s face, dition seems clear on its a review of the It also tain such endorsements. contends laws is more than 40 hours that Netus worked contend, clarify meaning. its The Habers that she therefore fails to meet the week and agree, interplay and we. that the between the being employee. first condition of and New York Workers’ Com Endorsement pensation potential Law creates Ambiguity Meaning A. Within in the Endorsement. Endorsement example, For one section of the workers’ St. Paul contends requires that laws benefits be unambiguous and that *5 the district court’s provided only they for “domestic workers” if contrary reading of the Endorsement is forty per work at least hours week. See parties. the intentions 3(1) 12) Comp. § N.Y. (Group Workers’ Law 1992). inference, (McKinney By employer an am Whether contract is required provide is not benefits to domes- law, biguous question a which we review tic forty workers who work less than hours Werbungs de novo. Und See Commerz Union Although week. domestic workers who Guild, Ltd., Au stalt v. Collectors’ 930 forty work than less week would (2d Cir.1991). Language 1026 in F.2d satisfy being the first condition of a “resi- ambig an insurance contract will be deemed employee” dence under the terms of the En- if reasonable minds differ as to its uous could dorsement, they satisfy would not the second meaning. generally, Id. “As with contracts 3(1) condition, (Group because under section provision ambigu in an insurance 12),they employees are not for whom benefits reasonably susceptible ous when it is to more provided. must be reading.” than one United States Fire Ins. 3(1) 19) Alternatively, (Group pro- Corp., v.Co. General Reins. 949 F.2d employer may bring vides that an an em- Cir.1991). (2d 572 aOnce contract is found ployee, iswho not otherwise to be ambiguous, to be a court must am examine covered, within the of workers’ biguous vantage point terms “from the of the compensation by “securing compensation law expectations purposes ‘reasonable of the ” employee his ... accordance with sec- ordinary [person],’ In re: Prudential fifty chapter.” of this Section 50 ex- Lines, Incl, (S.D.N.Y.1994) B.R. 170 233 plains employer may compen- that an secure (citations omitted), and should consider ex sation for an parties’ trinsic evidence of the intentions. By insuring keeping 2. insured the See, e.g., United States Fire Ins. payment compensation any of such findings F.2d at 571. The district court’s corporation, corporation stock mutual regarding meaning ambiguous of the reciprocal insurer authorized to transact may they terms not be disturbed unless are compensation the business of [workers’] Prods., clearly In erroneous. See Time Ltd. this state. Biz, Inc., (2d Toy v. 38 F.3d Cir. 1994). 50(2). Moreover, words, there are two Id. In other a domestic “[w]here evidence, permissible views the factfin worker who works less than hours a categorized der’s choice between them cannot be for week be City, compensation erroneous.” must Anderson Bessemer 470 whom workers’ benefits employer very confusing. average find it I think an provided be if her secured has really compensation layperson know what is cov- for her to section 50. wouldn’t 2(4). Thus, explained wording here.” one ered She See id. meaning compensation laws that a of the Endorsement and its is con- workers’ indicates fusing who are employee who works “even those [insur- domestic less expert possibly industry.” ance] not If an insurance can- hours a week deemed be could clearly explain meaning not employee” under Endorse- “residence “residence ment, employee,” surely another states an em- then reasonable minds while such (cid:127) meaning of ployee may employer covered if her se- could differ as to the the term. be ,930 Guild, F.2d at cures for her. See Collectors’ 1026. sum, our review Endorsement and purchase contend that their The Habers Poplowski’s testimony Ms. satisfies us that containing Policy the Endorsement effec- finding not err in district court did Netus, tively compensation for secured ambiguous. the Endorsement was employee for made her an whom benefits and which satisfies Expecta- and Reasonable Intentions being a em- condition of second tions ployee. We turn now to an examination of the ambiguity in the arises parties’ Paul intentions. St. maintains that it it is unclear whether second provide coverage did not for intend to work an employee condition—whether Netus is ers’ benefits for provided”—is whom “must be satis- points such as Netus. St. Dr. Ha fied the existence of the Endorsement testimony ber’s that he did not Ne consider interpretation of itself. This the Endorse- employee, tus to be did withhold ment may appearing criticized as circular. security payments, specifi social and did not all, endorsement, why After cally request insur purports only employees to cover for whom Poplowski explained ance for her. Ms. *6 St. provided, also, very by benefits must be its Paul’s testified that Paul intentions. She St. existence, provide bringing a means for other policies issued Endorsement with its to employees coverage? classes of within its comply with York New Insurance Law However, a review the workers’ 3420(])(1), requires homeowner’s compensation necessary laws is to define policies compensation to include workers’ “employees pro- whom must be coverage employees to residence who work vided,” and because those laws define the forty less than hours a week and who are provision way in a that an would allow for statutorily entitled to such benefits. St. such as the one at here to endorsement issue also points practice Paul’s to commentaries bring such as Netus within industry and regarding bulletins purview coverage, interpreta- the Habers’ 3420(j)(l), which indicate that en tion of the Endorsement is reasonable and to that dorsements added gives ambiguity. rise to See United do not constitute a election of cov (“a Co., Fire 949 States Ins. F.2d at 572 erage. provision in ambiguous an insurance contrast, reasonably susceptible By they when it is to more the Habers maintain that home, sought full reading”). coverage than for their that one they agent, Liquori, relied on St. Paul’s to Although not this St. did concede provide they coverage needed. Dr. Ha- ambiguity, only expert its witness testified expressed Liquori ber this intention “very confusing.” housekeeper’s he showed room to Liquori Poplowski, When a In- Ms. Sandra Personal when he home. visited the Habers’ Specialist by Marketing employed surance Paul, in The Dr. was asked what instance would a district court credited Haber’s However, testimony. be covered En- the court determined dorsement, responded: upon specifically she that Dr. not Haber did seek “[b]ased Endorsement], this, policy containing [the I eov- wording of
697
short,
reasonably expected
In
the district court deter- Habers could have
erage.
their
not have the
the Habers did
homeowner’s
mined
cover their workers’
compensa-
a workers’
specific
liability
injuries.
intent
obtain
for Netus’s
they
general
states,
policy,
many
but that
had a
intent
recognizes
Like
New York
coverage
potential
full
for their
See,
to obtain
expectations
“reasonable
e.g.,
doctrine.”
liability. Nothing
suggests
Co.,
in the record
that Ace Wire & Cable
Inc. v. Aetna Cas. &
erroneous,
findings
Co.,
are
and St.
390,
655,
these
Sur.
60 N.Y.2d
469 N.Y.S.2d
challenge
them as such.
658,
Paul does
457 N.E.2d
763-64
Under
doctrine,
this
ambiguity
if an
arises that can
question
becomes whether these find
by examining
parties’
not be resolved
parties’
ings as to the
intentions resolve the
intentions,
ambiguous
then the
language
Although
in the
Endorsement.
should be
construed
accordance with the
policy may
Paul or the drafters of its
have
expectations
reasonable
of the
when
insured
intended to follow the dictates of New York
he entered into the contract.
Fried v.
See
§ 3420(j)(l)
senti
Insurance Law
and the
Co.,
North River Ins.
710 F.2d
1025
literature,
industry
ments reflected
(4th Cir.1983)
law);
(applying
York
New
type of evidence of an insurer’s intentions is
Co.,
Board
F.Supp.
v. CNA Ins.
See, e.g., Michigan
not conclusive.
Chem.
of Educ.
(S.D.N.Y.1986).
1495, 1503
Co.,
Corp.
F.Supp.
v. Travelers Indem.
(W.D.Mich.1982) (“the
147, 153
court must
A
review of the
of the Endorse-
parties
more at ...
the intent of the
look
ment reveals that
the Habers could have
the contract than to the intent of the drafters
reasonably expected the Endorsement
policy”),
rev’d on other
standard
liability
cover them for their
under the work-
(6th Cir.1984).
grounds,
that is inferable from if “[i]t corollary trine is a the contra-insurer or that when policy the assureds received the contra-proferentem rule. That rule states they thought they liability were covered for policy that “where a of insurance is so any respect in kind of accidents to the room for framed as leave two construc Here, Caldwell, in domestic.” Id. as Dr. tions, interpreted the words used should be coverage Haber asked for full and noted the strongly against most the insurer.” Liver housekeeper. existence of his live-in Kearney, pool & London Ins. v. & Globe Co. 132, 136, 326, 328, par that our 21
We find review of the 180 U.S. S.Ct. 45 L.Ed. (1901). conclusively ties’ intentions does not resolve 460 In Matthews v. American Cen Co., 449, 456-57, ambiguity in the the Endorsement. None tral Insurance 154 N.Y. 48 theless, (1897), question it raises the of whether the N.E. 751 the New York Court
698
against lia-
provide
coverage
“for
that,
policies to
insurers
explained
because
Appeals
may incur
policyholder
the
bility ... which
the mean-
policies, “when
generally prepare
law,
to the workers’
pursuant
doubtful,
most
be construed
ing
it should
is
in
arising out of and
insured,
nothing to
who had
favorably to the
less than
employment
course
thereof.” Later
preparation
do with
argument
The thrust of its
week.”
that
is fundamental
explained
“[i]t
have
cases
mandatory Endorsement cannot
that this
policy
is
insurance
ambiguities
that
voluntary election of cover-
as a
be construed
Thomas
against the insurer.”
be construed
Com-
to New York Workers’
age
Liberty
Ins.
34
Mut.
Lipton, Inc.
J.
19)
3(l)(Group
705, 708,
pensation Law sections
356,
314
357 N.Y.S.2d
N.Y.2d
pro-
50,
3420(j)(l) expressly
section
gains added
This rule
N.E.2d
39
vides that
in an exclu-
ambiguities are found
force when
Liberty
(citing
sionary
policy providing
Id.
purchases
clause.
one who
[n]o
Sincoff v.
Co., 11 N.Y.2d
personal liability
Fire Ins.
comprehensive
Mut.
13, 15-17,
N.E.2d
have elected to cover
N.Y.S.2d
be deemed to
shall
found,
(1962)). Indeed,
once
law
under the workers’
heavy burden of dem-
required,
insurer bears the
“the
who is
law,
unreasonable for
onstrating that it would be
provisions of such
be covered.
reading
to con-
average man
argues
language,
Paul
Relying on this
does and that
its
it as the
strue
insured
in the
interpret
the Endorsement
that
policy provi-
interpretation of the insurance
constituting a
Habers’
fairly
could
only
construction
sions is
violates
section
election
Kenevan v. Em
placed
policy.”
on the
3420(j)(l).
Shield, 791
pire Blue
& Blue
F.Supp.
Cross
assume for the sake of
This Court will
(internal
(S.D.N.Y.1992)
quotations
Paul
the Endorse-
argument that St.
added
omitted).
and citations
comply
policies to
ment to its homeowner’s
here,
facts
Applying
principles
these
3420(j)(l). What must be re-
with section
interpretation of the Endorse-
accept
however,
solved,
we
not be
is whether the “shall
While we hesi-
ment offered
the Habers.
3420(j)(l)
limits
deemed”
agree
the district court
precludes
tate to
the terms of the Endorsement
the more reason-
interpretation was
accepting
interpretation
Haber’s
this Court
one,
have determined-that St.
able
we
urged by the Habers
of the Endorsement
showing
.
has not met its burden
accepted
the district court.
average man
unreasonable for the
would be
practice commentaries
Paul relies on
to construe it as
reading interpret
and other materials
interpretation
that its
the Habers do and
support
position
laws to
its
fairly placed on
only
that could be
one
court’s
of.
that the district
Moreover, this result
Id.
the Endorsement.
3420(j)(l).
violates
expec-
reasonable
comports with the Habers’
to section 3 of
practice commentaries
policy.
obtaining
their homeowner’s
tations
ex-
Law
New York Workers’
*8
3420(j)(l) provides cover-
plain that section
New York Law
B. Construction with
any
liability
payment of
age “for
for the
Compensation
obligation
the Workers’
fact
that
the
Notwithstanding the
group
employees.”
for a limited
accepted Law
interpretation of the Endorsement
Commentaries,
Minkowitz, Practice
by applying
Martin
was reached
well-estab
above
1992).
(McKinney
Comp. § 3
interpretation, St. N.Y. Workers’
rules of contract
lished-
“protect the
coverage
designed to
interpretation
This
was
argues that the
violates
Paul
liability
unexpected
when
Spe
New York law.
homeowner
or is inconsistent with
Compensation] Board deter-
the
cifically,
[Workers’
that
it contends
homeowner did
person,
that a
who the
pursuant to New mined
policies
to their
was added
coverage, is entitled to
required
3420(j)(l),
re
not believe
York Insurance Law
Regarding the issue
liability
benefits.”
Id.
personal
quires
comprehensive
all
injured
$100,000
coverage,
person
the commentaries
state
one
and
elective
to another
policy’s
coverage
provision.
does not constitute
violated the
“[t]his
that
The insurer
voluntary coverage
urged
rely
in
the
court
elective or
on section
19)____
3420(f)(2)(A)
Therefore,
3(l)(Group
Law,
of New York
section
Insurance
clearly
$300,000
not
covered for which
person who is
be
states that a total of
may
“subject
$100,000
benefits would not be
be awarded
to” the
However,
solely
per person
because of the
limit.
deemed
be covered
in-
the
comprehensive liability poli-
policy
“subject
existence of this
surance
lacked the
to” lan-
Id.
cy.”
guage
3420,
in
contained
the court
policy
found that
the
ambiguous
Piercy,
St. Paul also cites Jack
President
interpreted
against
should be
the insurer.
of the New York
Insurance
Board,
The Mostow court determined that
Policy
interprets
who
the law as not
the
affording “voluntary
interpretation urged by
or elective
the insured was “not
423,
to law.” Id. at
persons
occupations already exempt
contrary
those
668 N.E.2d at
Compensa-
York
though
interpretation
under New
State Workers’
394. Even
the
urged
insured,
explains
“part-time
Law.” He
untimely accepted by
do-
the
court,
provided $90,000
other
can still
mestics and
more to the insured
voluntarily,
only
...
provided,
[and]
insured
means
than section 3420
have
would
providing coverage
by obtaining
a stan-
court found that it was lawful because section
3420(a)
compensation policy.”
provides
dard workers’
that a construction of the
law that is “more favorable to the insured” is
Although
practice commentaries
lawful. Id.
Piercy’s interpretation
3420(j)(l)
of section
that the Endorsement does not con- We need not decide here whether the New
suggest
coverage,
Appeals
stitute a
election of
New York
similarly
Court
would
read
3420(a)
3420(f).
inap-
3420(j)
York courts have held that
into
as it did with
However,
3420(a)
propriate
clarify
to consult a statute to
the rule of construction in
term,
ambiguous policy
especially if it
is consistent with
other rules of construction
expectations
contravene
reasonable
of an
used
New York
courts
seek to
Compa
insureds,
Insurance
example,
protect
For
eontra-proferentem
insured.
such as
Godwin,
ny
North America v.
expectations
46 A.D.2d
and the reasonable
doctrine.
(N.Y.App.Div.1974), Accordingly,
of Mostow
logic
applies
the itself. St. hours we conclude Endorsement in finding Paul stated the the con- could have Endorsement district court’s first a that it not constitute elec- “does dition of the Endorsement was satisfied was tion under New clearly of York Workers’ erroneous.
Compensation Law.” sum, persuaded we are not that the CONCLUSION accepted interpretation of the Endorsement reasons, the we foregoing affirm the For law, court violates New York the district decision of court. the district depart reason to and we see no interpreta- rules of contract well-established PARKER, Judge, dissenting. Circuit above. discussed I that the district court in believe erred law, finding, plaintiffs- as. a matter of C. Condition of Endorsement First (the “Habers”) appellees Dr. and Mrs. Haber Finally, Paul contends voluntarily provide Workers’ elected Com- in finding court erred that Netus district pensation coverage helper, for a domestic forty hours a in less than week and worked (“Netus”) through Florine Netus HO-90 concluding that she therefore satisfied the “Endorsement”) (the to their being employee. first a condition homeowner’s insurance with conflicting court heard testi- The district (“St. Paul”). finding This con- Guardian mony many regarding how week per hours trary explicit New York Tuesday mornings, On Ne- Netus worked. 3240(j)(l). I Insurance Law vacate would apartment tus travel from her in would judgment the district court on this Brooklyn stay to the Habers’ house point proceedings. and remand for further through Sunday mornings them 7:45 a.m. on Therefore, respectfully I dissent. apartment. when she would return to her law,, governs Under New York sporadic, usually Her but duties were includ- action, diversity an insurance should cooking, varying cleaning, ed amounts of give effect intentions .construed Although childcare. some of her chores parties expressed unambigu in the begin at 8:00 a.m. and would others Sylvan policy. Village ous terms of Beach require in evening her to work as late as (2d 114, 115 Indem. 55 Travelers p.m., undisputed 7:00 it is or 8:00 that she F.3d Cir.1995). provisions “If the are clear and during usually day had free time to at- unambiguous, courts are enforce them as tend to watch church or television. Netus written.” Id. The determination of whether usually testified that she more than worked provision ambig in an insurance contract week, forty per hours whereas Haber Mrs. law, is a question uous reviewed de novo testified that Netus worked much less than appeal. Werbungs on Und Commerz Union However, hours week. the district Guild, Ltd., Austalt v. Collectors’ 930 F.2d persuaded by court was Dr. Haber’s most (2d Cir.1991). 1021, 1026 usually testimony that Netus less worked than forty week and occasion- provision If a in an court finds ally she worked more hours. forty, ambiguous, contract to it should interpret finding, the Based on this district court con- ambiguities all favor insured and En- cluded that the first condition of the insurer, as the maker of the had been satisfied. dorsement Beach, Sylvan at A contract. 55 F.3d 52(a), findings provision ambigu- fact contract is
Under Fed.R.Civ.P.
an insurance
during
reasonably
fairly susceptible
a bench trial
ous if it
made
“shall not be set
“is
meaning.”
aside
to more
unless
erroneous.” See also
than one
McCormick &
City,
Empire
Group,
v. Bessemer
Co. v.
Ins.
878 F.2d
Anderson
470 U.S.
(2d Cir.1989).
1504, 1511,
provision
a court finds a
S.Ct.
L.Ed.2d
Once
ample
ambiguous,
there is
to be
the insured’s construction
Because
evidence
provision
support
governs,
court’s
of that
unless the insurer
record
district
“(1)
generally
can
finding that Netus
less
show:
that it would be unreasonable
worked
*10
Further,
majority interprets
reading
policy
the second
average
[to
man
for the
(2)
prong
insured
to be a
election of
does]
it as the
workers’
construe
only one that
compensation coverage.
place,
[is]
its own construction
the first
I
placed
policy.”
on the
fairly
agree
could be
prong
ambig-
cannot
that the second
Sincoff
and,
were,
Fire Ins.
11 N.Y.2d
Liberty
secondly,
Mut.
if
uous
even it
the inter-
899, 901,
13, 16
390, 183
230 N.Y.S.2d
N.E.2d
pretation
majority
which the
concludes is
contrary
principles, and
reasonable,
Under these
anything
is to me
but.
assertion, the Endorsement is
to the Habers’
provides coverage
The Endorsement
for
ambiguous.
not
employees
compensation
“for whom workers’
is entitled
The Endorsément
“Workers’
provided.”
majority
benefits
The
Employ-
Compensation, Certain Residence
must,
acknowledges, as it
that domestic
immedi-
ees.” The use of the term “certain”
(who
workers such as Florine Netus
ately
average person that some but
alerts the
week)
employed
forty
per
for less than
hours
employees
not all residence
will be covered
employees
not
for
are
whom workers’ com-
Specifically, at is-
under the Endorsement.
pensation
generally required.
benefits are
meaning
effect of
sue in this case is the
Indeed,
Compensation
Law
Workers’
of the Endorsement
entitled
the section
(‘WCL”) specifically requires coverage to be
This section defines the
“Who is Covered.”
provided for domestic workers who work “a
coverage,
which does not extend
extent
forty
per
minimum of
hours
week.”
employees:
all residence
3(1),
N.Y.Work.Comp.L.
Group
§
employee
A
residence
under this
covered
majority
The
sees an
in the
employee who
endorsement is a residence
because another sec-
is both:
permits
employer
tion of the law
to elect
regular employment
engaged
a.
bring
employee
who is not
per
engaged
week or is
less than 40 hours
coverage by voluntarily
be covered within
employment,
in casual
provides
purchasing insurance which
work-
York
b. defined under New
compensation
reasoning
ers’
benefits.1 The
compensation
law as an
majority
ambiguity ap-
which creates
compensation
whom workers’
pears to be:
added.)
provided. (Emphasis
must be
1)
policy provides coverage
The
if the
regard
prong
to the first
of this
With
compensation
requires
workers
law
Netus
definition,
court
that Netus
the district
found
to be covered.
forty
Be
worked less than
hours
week.
finding
cause this
of fact is not
erro
2)
specifically require
The law
cov-
doesn’t
neous,
upheld by
it must be
this Court. See
erage
because Netus works less
City
City,
Anderson v.
Bessemer
470 U.S.
week.
564, 573, 105
1504, 1511,84
S.Ct.
L.Ed.2d
3)
permits employers
The
to voluntari-
law
(1985). Hence,
prong
the first
of the defini
ly
coverage by purchasing workers’
elect
employee”
tion of a
in the
“covered
compensation insurance.
Endorsement is satisfied.
4)
Once such
is elected to be
question
thus becomes whether the
purchased,
is entitled to ben-
prong of the Endorsement’s definition
second
efits.
employee”
of “covered residence
is satisfied.
5)
claim,
majority opinion
By purchasing
provi-
with its
The Habers
and the
agrees,
prong
ambiguous.
covering
sion
those who must be covered
second
2(4).
subparagraph
provides
4 of
Section 50 of the WCL
1. Section
the Workers’
(“WCL”)
employer may
provides
secure
to his em-
Law
”[b]y insuring
keeping
"employee”
ployees
insured the
term
"shall
include domestic
except
payment
...
of such
stock
servants
in section three
reciprocal
except
employer
bring
corporation,
corporation or
where the
has elected to
mutual
by securing
authorized to transact
the business of
such
under the law
com-
insurer
pensation
[New
in accordance with the terms of sec-
workmen’s
50(2).
fifty
chapter.” N.Y.Work.Comp.L.
N.Y.Work.Comp.L.
York]:"
of this
*11
provision of
law,
Notwithstanding any other
made such an
under the
the insured
any
to the con-
chapter
or
other law
coverage.
election
comprehen-
trary, every policy providing
for several reasons.
logic
This
is flawed
one,
a
personal liability insurance on
sive
First,
ambiguity in a scheme
there is no
two,
family owner-occupied
four
three or
requires it
provides coverage if the law
which
coverage
provide
...
for
dwelling
shall
if
to cover is made. The issue
or
an election
payment
any
against
liability for the
The
such an election was made.
is whether
policyholder may in-
obligation,
the
which
specifically found that Haber
district court
provision
of the work-
cur
compensation cover-
ask
didn’t
for workers’
law,
to an
compensation
ers’
any specific
have
age for Netas and did not
employ-
course of
arising out of and
the
fact,
not
purchase it.
Haber did
intent to
week, in
forty
if
hours
ment
less than
employee.
her as an
These find-
even treat
policy-
such
and about
residences
gener-
The
ings were not
erroneous..
pur-
in this
No one who
holder
state.
purchase
comprehensive
al
intention to
providing comprehensive
policy
chases a
hardly
is
sufficient to
homeowner’s insurance
personal liability insurance
the home]
[for
provide
constitute an election to
workers’
cover
shall be deemed to have elected to
compensation benefits.
any
law
the
Second,
reasoning
completely circu-
the
is
required,
who is not
under the
logic
by
law,
is that
the mere act of
lar. The
provisions
such
to be covered.
only
those
purchasing
a
which
covers
added).
3420(j)(l) (emphasis
§
N.Y.Ins.L.
law,
by
the insured
covered
who
disputed
St. Paul claims
automatically
coverage
those
receives
in the Endorsement’s definition
“covered
if
to
who
be covered
the insured elects
terminology
employee” is
used
“May”
so.
becomes “must” without
do
3240(j)(l).
satisfy
requirements
of section
except
purchase
indication of an election
track the re-
The Endorsement does indeed
policy.
3420(j)(l).
quirements
out
in section
laid
Thus, the definition of “covered residence
here,
Third,
if one
even
sees
employee”
susceptible
only
one mean-
not,
parties
I do
it is the intent of the
which
3420(j)(l)
ambiguous,
ing, is not
and section
controls the
of con-
which
being
prevents
from
only
as
tracts. The
intent of the Habers
of workers’
deemed
election
general
trial court
intent
found
coverage.
comprehensive
obtain
homeowner’s insur-
Paul,
impossible, my
ance. As for St.
it is
practice commentary
3 of
The
to section
by including provision
to infer
view
applica-
specifically addresses the
the WCL
if
coverage
the cov-
3420(j)
tion of section
of the Insurance Law:
law,
erage
required by
to fur-
intended
3420(j)
§
[required
]
This
does
provide coverage
required by
not
law.
ther
cover-
not constitute elective
conclude,
It is far more reasonable to
as St.
3(1), Group
age
provided in
Section
(and
Poplaw-
Paul contended
its witness Ms.
Compensation Law].
[of
Worker’s
testified) that
was in-
ski
the Endorsement
any person
required
Therefore
who is
comply
cluded to
with New York Insurance
to be covered for workers’
3420(j)(l)
requires
Law
home-
to be cov-
benefits would not be deemed
policies
provide coverage
for do-
owners’
solely
of the existence of the
ered
work less than
mestic
who
comprehensive personal liability policy.
reason,
they,
if
for some
week
3, N.Y.Work.Comp.L.
practice commen-
entitled to benefits under law.
become
tary.
practice commentary also notes
Furthermore,
3420(j)
protect
“to
there is a New York
that section
was added
statute
liability
directly
unexpected
when
addresses the issue of whether
homeowner
Compensation] Board
may be deemed an election
deter-
[Workers’
person,
that a
who the homeowner did
compensation coverage!
of workers’
Section mines
coverage,
3420(])(1)
provides:
not believe
is entitled
of the Insurance Law
law, construing
Id.
It
is also of note that all
contract
ambiguous
benefits.”
comprehensive
policies
(3)
homeowner’s
will be
insurer;
clauses
found
to include this form of workers’
construed
that the claimant
employee by
was a covered
*12
compensation coverage by virtue of section
deeming the
endorsement
be the home-
applicable
“whether or not
en
3420®
Id. at *l-*2.
owner’s election
coverage.
policy.”
has beén attached to the
dorsement
Upon
however,
2-28-85,
appeal,
the Board
Op. No.
N.Y.Ins.
reversed
N.Y.Gen.Counsel
(Feb. 28, 1985).
findings.
Bull.
the Referee’s
The Board held that
the claimant was “not entitled to worker’s
interpretations
rulings by
There
and
are
provisions
Compensation
under
New York Worker’s
Board
“Board”)
(the
support
analysis.
employer’s
pol-
homeowner’s insurance
Frisch,
4414,
In re Howard
In
No. 5881
icy”
3420®(1)
because
to Section
(N.Y.Work.Comp.Bd. Aug.
similar UNITED STATES insured, underlying reliance on an insurer, important there is statute ABRAMS, Reuben also known as Robert controlling. Mostow is not distinction and Fallon, Abrams, known as John also in Mos- on the insurer The statute relied Jacobs, Defendant- as David also known that no insurance did not state tow Appellant. $100,000 per to waive the could be deemed Thus, “subject to” person recovery limit. 962, Docket 97-1315. No. required under the have been *13 Appeals, United States Court prevent that case to ambi- circumstances of Circuit. Second Here, however, 3420(j)(l) ex- guity. interpretation urged by plicitly precludes the Argued Feb. the Endorsement the Habers—that 23, 1998. Decided Feb. of workers’ deemed an election law. coverage not otherwise wording the statute seems to antici- challenge
pate the exact the Habers Thus,
present here. explic- urged by is
Endorsement the Habers law, contrary
itly and the Endorsement ambiguous. true that While does not word-for-word 3420(j) of the section
track Law, Court is without
the Insurance this
power simply ignore the last sentence 3420(j), explicitly prohibits this
portion of a homeowner’s insurance coverage being an election of deemed 3(1), Group to sections and 50 of
the WCL. sum, explicit language of based on the statutes, controlling I believe incorrect,
majority opinion and that court erred as a matter of law
district
ruling should be of the WCL.
deemed an election entry
I and remand for would reverse opinion.
declaration consistent with