Bacallao, Amalia v. Javier H. Sanabria DBA Custom Cleaning Service , 2021 TN WC 149 ( 2021 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
Amalia Bacallao, ) Docket Nos.: 2019-04-0203A
Employee, ) 2019-04-0203B
v. ) 2019-04-0203C
Javier H. Sanabria DBA Custom)
Cleaning Service, )
Respondent, ) State File Nos.: 51633-2019
And ) 27508-2020
AmGuard Ins. Co., ) 27484-2020
Respondent, )
And )
Victoriano C. Jutzuy, ) Judge Robert Durham
Respondent, )
And )
United Painting Services, Inc., )
Respondent, )
And )
Auto Owners Ins. Co., )
Respondent. )
COMPENSATION ORDER GRANTING AMGUARD’S
MOTION FOR SUMMARY JUDGMENT
The Court held a hearing on February 16, 2021, on AmGuard’s Motion for
Summary Judgment on the grounds that it is not contractually obligated to provide
coverage for claims filed in Tennessee. None of the parties contested AmGuard’s motion;
however, the Court asked AmGuard to file a supplemental brief as to the enforceability of
the stated policy provision. After reviewing the record, the Court holds that AmGuard is
entitled to summary judgment as a matter of law.
History of Claim
Based on the Statement of Undisputed Facts, Amalia Bacallao, the injured
employee and a Tennessee resident, entered into a contract with Victoriano Jutzuy in
Tennessee to paint the new fitness center at Tennessee Tech in Cookeville.' During an
Expedited Hearing, she also asserted that Mr. Jutzuy had contracted with Mr. Sanabria in
North Carolina to paint the fitness center, and that Mr. Sanabria had subcontracted the job
from United Painting Services. AmGuard provided workers’ compensation insurance for
Mr. Sanabria, but the contract limited coverage to injuries 1n North Carolina.
After the Expedited Hearing, the Court held that Ms. Bacallao would likely prove
at trial that she suffered a compensable back injury while working for Mr. Jutzuy;
however, she did not provide sufficient evidence of a subcontractor relationship between
Mr. Jutzuy and Mr. Sanabria.
In this motion, AmGuard contends that even if Ms. Bacallao were successful in
linking her employment to Mr. Sanabria, it would nevertheless be entitled to judgment as
a matter of law because the policy it issued to Mr. Sanabria contained the following
language:
The employee claiming benefits was either hired under a contract of
employment made in a state listed in Item 3.A. of the Information Page or
was, at the time of injury, principally employed in a state listed in Item 3.A.
of the Information Page; and b. The employee claiming benefits is not
claiming benefits in a state where, at the time of injury, (4) you have other
workers compensation insurance coverage, or (ii) you were, by virtue of the
nature of your operations in that state, required by that state’s law to have
obtained separate workers compensation insurance coverage, or (111) you are
an authorized self-insurer or participant in a self-insured group plan; and c.
The duration of the work being performed by the employee claiming
benefits in the state for which that employee is claiming benefits is
temporary.
AmGuard contended Ms. Bacallao was hired by Mr. Jutzuy in Tennessee and that
she was injured in Tennessee. It further contended that Mr. Sanabria did not have
workers’ compensation insurance coverage in Tennessee. Thus, AmGuard argued that
Ms. Bacallao’s injury did not satisfy the requirements for coverage under the policy.
Law and Analysis
To prevail on a motion for summary judgment, a party must (1) submit affirmative
evidence that negates an essential element of the nonmoving party’s claim; or (2)
demonstrate that the nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim. Tenn. Code Ann. § 20-16-101 (2020).
"Mr. Jutzuy did not carry workers’ compensation insurance.
2
Here, none of the parties opposed the motion. Thus, the Court turns to whether the
policy provision at issue allows entry of summary judgment in favor of AmGuard.
In that regard, it is undisputed that Ms. Bacallao could not satisfy the first element
of the policy and receive any benefits under it because the contract of hire was made in
Tennessee and the injury occurred here. Likewise, it is undisputed that Mr. Sanabria did
not obtain a workers’ compensation insurance policy covering Tennessee claims.
However, the issue is whether the exemption itself is enforceable under workers’
compensation law, thus making summary judgment in favor of AmGuard appropriate.
AmGuard concedes that it could not find any case interpreting this provision under
Tennessee law. However, it did cite cases from other states that have considered policy
provisions limiting coverage to certain states. See, e.g. Matter of Chmura v. T&J Painting
Co., 83 A.D.3d 1193 (NY App. Div. 2011); Granite State Ins. Co. v. Hernandez, 992 A.2d
528 (Md. Ct. of App. 2010) (the opinion also reviewed several other decisions considering
this issue). Although the facts differ in each case, the general holding is that the exclusion
is enforceable so long as the intent is clear: the carrier is not responsible for payment of
benefits under the law of the state where the worker was injured unless all of the elements
of the exemption are met. Although these decisions are not binding on the Court, they are
persuasive.
Given the undisputed facts, the Court holds that AmGuard is entitled to summary
judgment as a matter of law and is not liable for providing workers’ compensation benefits
to Ms. Bacallao under the stated policy provision.
IT IS, THEREFORE, ORDERED:
1. AmGuard’s Motion for Partial Summary Judgment is granted, and it is dismissed
with prejudice.
2. Unless appealed, this Order shall become final in thirty days.
ENTERED February 24, 2021.
Robert V. Durham, Judge
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on February 24, 2021.
Name Certified | Via Via_ | Service sent to:
Mail Fax Email
Amalia Baccallao x x 378 W. Stevens Street, Apt. D
Cookeville, TN 38501
mayabacallao@hotmail.com
Javier S. Sanabria xX 5663 Silver Bell Lane
Granite Falls, NC 28630
Victoriano C. Jutzuy x 1657 East Crest Drive, Apt. M5
Charlotte, N.C. 28205
Allen Callison xX Allen.callison@megclaw.com
Michael Haynie x mhaynie@manierherod.com
Uninsured Employers X | Lashawn.pender@tn.gov
Fund
f/f
f
co
he
| /
dw
Penny Shrumy, Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the
date the compensation hearing order was filed. When filing the Notice of Appeal, you
must serve a copy upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
altemative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the filing fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of your appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifieen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement
of the evidence before the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.
4. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
CZ Expedited Hearing Order filed on CD Motion Order filed on
C1 Compensation Order filed on Oi Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): [o Employerl | Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): [| Employer [Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082