85 A.D.2d 880 | N.Y. App. Div. | 1981
Order unanimously reversed, on the law and facts, with costs, and judgment entered in favor of defendant dismissing the complaint. Memorandum: Defendant Employers’ Liability Assurance Corp. Ltd. (Employers) appeals from an order after a bench trial which directed entry of a money judgment against it in favor of plaintiff Loblaw, Inc. (Loblaw). Employers issued a Workmen’s Compensation excess reinsurance contract to Loblaw for amounts which Loblaw would be required to pay under the Workmen’s Compensation Law in excess of a $25,000 retention for which Loblaw was self-insured. Brownie Uzarowski, Loblaw’s employee, injured his back on February 24,1964. By April, 1966 Uzarowski had had a laminectomy and was diagnosed as having a mild, permanent partial disability. In June and July of 1966, Loblaw’s agent for its workers’ compensation claims, Albert F. Stager, Inc. (Stager), reported that the Uzarowski claim was one that could “prove very expensive because here we have a fairly young man and this can go on forever” and that “this case calls for a heavy reserve figure”. There was a conflict in the proof as to the amount of the reserve, i.e., the amount reasonably anticipated to be paid out before a case is closed. In correspondence with the Workmen’s Compensation Board, Stager set the reserve at $25,000, but a letter from