State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Franklin v. Superior Casting

CASE NO. 5269 CRB-7-07-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 15, 2009

WILLIE L. FRANKLIN

CLAIMANT-APPELLEE

v.

SUPERIOR CASTING

EMPLOYER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

GUARANTY FUND MANAGEMENT SERVICES

INSURER

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Robert F. Carter, Esq., Carter & Civitello, Attorneys at Law, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondents Superior Casting and Liberty Mutual Insurance Group were represented by James D. Moran, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824-0550.

The respondent Guaranty Fund Management Services was represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 6087, Glastonbury, CT 06033-6087 and Mark D. Robins, Esq., Nixon Peabody, LLP, 100 Summer Street, Boston, MA 02110.

The Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not appear at oral argument.

This Petition for Review1 from the August 28, 2007 Finding and Award of the Commissioner acting for the Seventh District was heard March 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. There is presently a single issue on appeal before this panel. Does the Connecticut Insurance Guaranty Association (“CIGA”) have the responsibility for payment of a claim when it insured the now-insolvent last carrier on a risk and there are other carriers whom are subject to apportionment under § 31-299b C.G.S.?2 The trial commissioner determined that CIGA was liable; holding that this constituted a “covered claim” under the CIGA statute; but that CIGA had apportionment rights against the solvent carrier on the risk. CIGA has appealed arguing that this would be a claim for the benefit of an insurer, which they are not obligated to pay. We reject CIGA’s statutory interpretation and dismiss this appeal.

The trial commissioner pointed out “the essential facts in this matter are not in serious dispute.” The claimant worked for 15 years in the respondent Superior Casting’s foundry. During the course of his employment he developed silicosis which was an occupational disease brought about by repetitive trauma. The claimant filed a timely Form 30C and the employer’s medical examiner has opined he has a 40% permanent partial disability rating. During the years the claimant was employed the respondent Superior Casting retained two insurance carriers for workers’ compensation. Liberty Mutual insured Superior Casting for about one and a half years; while during the remainder of the claimant’s employment American Mutual Liability Insurance (“American Mutual”) was on the risk. American Mutual became insolvent and CIGA became obligated to pay the claimant’s benefits to the extent they were “covered claims.”

Based on those facts the trial commissioner concluded the claimant was totally disabled due to a compensable injury and established a weekly compensation rate. He determined that the Connecticut Supreme Court’s decision in Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77 (2006) places CIGA in the stead of American Mutual by assuming the liability of the defunct carrier. The commissioner rejected CIGA’s position that the claim herein is not a “covered claim” and the payment of this claim is for the benefit of an insurer. The commissioner determined CIGA, as the last insurer, is liable for payment of all medical and indemnity benefits and shall be reimbursed 11.26% of said benefits from respondent Liberty Mutual Insurance Company. He also ordered CIGA, as the last carrier on the risk pursuant to § 31-299b C.G.S., to pay past and future medical expenses for claimant’s treatment. The commissioner rejected CIGA’s argument that the Second Injury Fund was obligated to pay any part of the claim.

Both the claimant and CIGA filed Motions to Correct. The claimant filed a motion which fixed a scrivener’s error and adjusted the compensation rate. CIGA’s motion sought to substitute conclusions that it was statutorily exempt from liability for this claim. The claimant’s motion was granted and CIGA’s was denied. CIGA appealed from this decision to this panel.

CIGA has filed three separate Reasons for Appeal. They claim that CIGA is not an “insurer” within the scope of § 31-299b C.G.S. because the present claim is not a “covered claim” as defined under § 38a-838(5)(a) C.G.S.3 and is subject to the theory of “exhaustion” under § 38a-845(1) C.G.S.4 They argue that they should not be responsible for covering the medical lien because that is also in their view not a “covered claim.” They also argue that the commissioner’s award is for the benefit of an insurer, and thus cannot be honored by CIGA. We are not persuaded by any of these arguments.

This panel last dealt with many of these same arguments in Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008). We noted in Potvin that “on multiple occasions this board and appellate courts have rejected the appellant’s efforts to define ‘covered claim’ in a fashion exempting them from liability.” Id, n 8. We cited a number of recent cases for this proposition, i.e. Esposito v. Simkins Industries, 5065 CRB-3-06-3 (March 1, 2007), aff’d, 286 Conn. 319 (2008); Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77 (2006); Giglio v. American Economy Ins., Co., 278 Conn. 794 (2006); Doucette v. Pomes, 247 Conn. 442 (1999) and CIGA v. Fontaine, 278 Conn. 779 (2006). We also cited in Potvin, supra, the text of § 38a-841(1)(b) C.G.S.

(1) Said association shall:
(b) be deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent (Emphasis added).

In the present case, as in Potvin, the original insurer became insolvent and CIGA was responsible for their covered claims. We held in Potvin “[t]he ‘plain meaning’ of § 38a-841(1)(b) C.G.S is that on a ‘covered claim’ CIGA shall act as the insurer and the claimant shall have the same rights against CIGA as he or she would have had against the original, and now insolvent, insurer.” Id. We reached this conclusion after considering the text of the CIGA v. Fontaine, opinion, which stated, in part, “[i]n general, the legislative objective was to make the [association] liable to the same extent that the insolvent insurer would have been liable under its policy.” Id., at 791.

CIGA rests much of its argument on the precedent in Hunnihan v. Mattatuck Manufacturing, 243 Conn. 438 (1997). Hunnihan stands for the proposition that CIGA does not honor claims payable to insurers. However, we find one significant difference herein. In Hunnihan the other insurer, Fireman’s Fund, was the initial carrier on the risk and was seeking reimbursement from prior insurers pursuant to § 31-299b C.G.S. As we explained in Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) citing Hunnihan, supra, “CIGA was not obligated to honor claims from solvent insurers.” In the present case, however, the insolvent carrier is the initial carrier on the risk and the trial commissioner concluded that this constitutes a “covered claim” under the statute which CIGA is obligated to address. The primary party seeking benefits from CIGA in the present case is the claimant, not an insurance carrier. Yet CIGA’s logic leads it to conclude that to honor Mr. Franklin’s claim would work to the benefit of a solvent carrier. We find this approach incompatible with the Supreme Court’s interpretation of the “covered claim” statute subsequent to the Hunnihan decision.

CIGA argues that when there is another solvent carrier which bears some responsibility for the claim that the entire claim should be apportioned against the solvent carrier. While CIGA argues that Konovaluk v. Graphite Die Mold, Inc., 4437 CRB 3-01-9 (August 8, 2002) supports this position, we find that Konovaluk only bars payment from CIGA to insurers for apportionment and requires the solvent carriers to disregard CIGA’s proportion of the risk when calculating apportionment.5 It does not deal with the situation wherein the last insurer on the risk became insolvent. Indeed, the decision in Konovaluk suggests it was drafted so as to adhere to “the intent of our legislature to offer some protection to the ‘last insurer on the risk,’” while expecting this insurer to step up and pay the claimant. Id. The “last insurer on the risk” is de facto, CIGA.6 Due to § 38a-841(1)(b) C.G.S., CIGA inures to the obligations the now-defunct carrier had to the claimant. This includes administration of the present claim and payments due to the claimant.

A review of the facts herein is instructive. The insolvent carrier on this risk had covered the injured employee for over 13 years; while the solvent carrier had but a year of exposure. The solvent insurer had not insured the claimant’s risk for almost 40 years at the time the claimant filed his occupational disease claim. CIGA’s position that a party so remote in time and limited in exposure should assume the administration of this claim strikes us as yielding an unworkable result. Potvin, supra. We also find CIGA’s suggestion, raised at oral argument before this board, that the claimant should investigate which insurance carrier is solvent when filing his or her claim equally unworkable.

In addition, we find that CIGA’s argument that assuming the administration of this claim would be for the “benefit of an insurer” indistinguishable from the argument that they raised in Connecticut Ins. Guaranty Assn. v. State, supra. In that case, CIGA argued that paying the State of Connecticut would indirectly benefit an insurer. The Supreme Court, however, defined “benefit” in a more narrow fashion and rejected this argument, pointing out that CIGA was not being directed to reimburse an insurer. Id., at 84. In the present case, the trial commissioner concluded that as a factual matter, the solvent insurer would receive no benefit were CIGA to administer the claim. Finding, ¶ H. Since we must defer to a trial commissioner’s assessment of contested facts, Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951) we find these circumstances similar to that of the Connecticut Ins. Guaranty Assn. v. State, case and agree with the trial commissioner’s conclusion. In both cases the party which derived the “benefit” was the claimant who was previously covered by the defunct carrier’s insurance policy.7 Therefore, we agree with the trial commissioner that the present claim is a “covered claim.”

We also believe that the plain meaning of the statute is relevant to this inquiry. While CIGA dwells on its own interpretation of its enabling act, and suggests that precedent from outside the state of Connecticut is controlling on the facts of this case;8 we look to the plain meaning of the Connecticut Workers’ Compensation Act, specifically § 31-299b C.G.S. which imposes a mandatory duty to act on the last insurer on the risk and, based on § 38a- 841(1)(b) C.G.S., CIGA.

The text of § 31-299b C.G.S. exempts only one entity from liability from apportionment or liability for a repetitive trauma injury, the Second Injury Fund. (the “Fund”)9 Indeed, the statute specifically calls for the reallocation of the Fund’s liability among other insurers and employers akin to the holding in Konovaluk: reapportioning liability otherwise placed on CIGA. The statute does not exempt CIGA from liability which would be imposed upon an insurer. The additional language exempting the Fund was added as part of Public Act 05-199; which took effect July 1, 2006. Therefore, the General Assembly adopted this additional language presumably with knowledge of the Hunnihan precedent, but did not see fit to extend the same immunity granted the Fund to CIGA.10

“It is a well-settled principle of [statutory] construction that specific terms covering the same subject matter will prevail over general language of the same or another statute which might prove controlling.” CHRO v. Truelove & Maclean, Inc., 238 Conn. 337, 346 (1996). The General Assembly has recently enacted changes to § 31-299b C.G.S. which specifically exempt only the Fund from liability. We are limited under § 1-2z C.G.S. to consideration of the “plain meaning” of the statute. First Union National Bank v. Hi Ho Shopping Ventures, 273 Conn. 287, 291 (2005). Since “[t]he absence of a term from the language of a statute can be telling…” Walter v. State, 63 Conn. App. 1, 8 (2001), we must presume the General Assembly did not intend to exempt CIGA from administering claims under the apportionment statute.

We now turn to the argument that the claimant must “exhaust” all other sources of insurance prior to seeking compensation from CIGA. CIGA argues that the terms of § 38a-845(1) C.G.S. bar the claimant from recovery. We disagree on the facts and on the law.

The facts herein are that the claimant suffered a repetitive trauma claim in which there were multiple years of exposure. There were separate carriers on the risk for various periods of time, but the Finding and Award has not identified any excess coverage insurance or tortfeasors that are potentially liable for the claimant’s award; nor does CIGA suggest this factual finding was erroneous.11 We agree with counsel for the solvent insurer that § 31-299b C.G.S. constitutes a statutory abrogation of the common law approach of joint and severable liability. Under this statute the solvent insurer has “exhausted” its obligation when it pays the share of the risk for which the trial commissioner determines it is responsible.

Supreme Court precedent involving CIGA is unsupportive of their arguments concerning the exhaustion statute. We find CIGA made a similar argument in Connecticut Insurance Guaranty Assn. v. Union Carbide Corporation, 217 Conn. 371 (1991). In CIGA v. Union Carbide Corporation, the Supreme Court held such statutes “were intended to apply only to prevent duplicate or windfall recoveries for losses sustained by an insured or a claimant resulting from insurer insolvency.” Id., at 390. The claimant in this case will not receive any such impermissible double recovery. The CIGA v. Union Carbide Corporation, case was relied on in two recent cases, Giglio supra, and Esposito, supra, in which CIGA was found liable for payment of an award.

In Giglio, CIGA argued the exhaustion statute would cause payment of an award for uninsured motorist liability to be shifted to another solvent insurer. The Supreme Court ruled to the contrary.

Indeed, we also have noted that “[i]n general, the legislative objective was to make the [association] liable to the same extent that the insolvent insurer would have been liable under its policy. . . . Connecticut Ins. Guaranty Assn. v. Union Carbide Corp., 217 Conn. 371, 390, 585 A.2d 1216 (1991) (association may not use exhaustion or nonduplication of recovery provisions to avoid its responsibilities for paying claims that should have been covered by insolvent excess insurer).” (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, supra, 278 Conn. 791–92. Thus, an interpretation of the guaranty act that automatically would shift liability from the association to the nearest solvent insurer when liability does not rest there already would do violence to the legislatively established scheme.

As we discussed, the “legislatively established scheme” in this case would be for the solvent insurer to absorb the portion of the liability the trial commissioner found it was liable for, and the balance to inure to CIGA as a “covered claim.” Such was the Supreme Court’s reasoning in Esposito, supra. In Esposito a self-insured employer (“Simkins”) sought to obtain proportionate reimbursement from CIGA for the benefits a defunct carrier (“American Mutual”) would have paid on a repetitive trauma claim. CIGA contended that due to the exhaustion statute “Simkins was required to seek reimbursement from all the solvent insurers for their proportional share of benefits attributable to their periods of coverage and for a similar proportional share of any benefits that were due from American Mutual.” (Emphasis in original) The Supreme Court did not direct CIGA’s share of the award to be reapportioned against the other solvent insurers as “Simkins has no rights under an insurance policy with any of the insurers that were not already satisfied” and the court found the other solvent insurers “fully honored their obligations under their respective policies.” Id., at 340.12 The Supreme Court concluded legislative policy made CIGA responsible to pay its share of the award.

The legislative objective of the guaranty act was to make the association liable to the same extent that the insolvent insurer would have been liable under its policy. Connecticut Ins. Guaranty Assn. v. Union Carbide Corp., supra, 217 Conn. 390 (association may not use exhaustion or nonduplication of recovery provisions to avoid responsibilities for paying claims that should have been covered by insolvent excess insurer).

Esposito, supra, 340-341.

There is no doubt that American Mutual would have been liable under § 31-299b C.G.S. for the same share of the claimant’s award that CIGA is presently responsible. Therefore, we find the trial commissioner properly found CIGA liable for payment to the claimant.

We believe this rationale also applies to having CIGA honor the expenses for medical care identified by the trial commissioner in Finding, ¶ M. Such reimbursement shall be governed by the terms of § 31-299a(b) C.G.S. We believe a contrary result would be counter to our statutory mission which promotes the prompt provision of medical care to injured workers. Potvin, supra. Paying such a lien is a statutory obligation of an insurance carrier, and therefore, we believe it falls within the scope of a “covered claim” as defined by statute. We also believe that not honoring such liens could cause employees of firms who were covered by defunct insurers to question how to obtain health care without impairing their rights to compensation under our Act. In Doucette, supra, the Supreme Court held “[i]t does not make sound policy to compel an employer, prior to paying benefits to an employee, to determine its rights and obligations prior to paying benefits to an employee.” Id., at 473. We believe equally meritorious policy arguments weigh against forcing claimants or medical care providers to question whether reimbursement is contingent on the solvency of insurance carriers, particularly during the present economic crisis.13

In Christensen, supra, we considered a very similar factual circumstance to the present case and reached the following conclusion.

We note the parties in this appeal have argued whether CIGA can be the lead carrier for the purposes of § 31-299b C.G.S. apportionment. We are puzzled at the apparent misunderstanding. Had a repetitive trauma claim occurred and CIGA was the carrier responsible for the claim at the time of its filing, CIGA would have the statutory right to seek apportionment from previous carriers on the risk. The Hunnihan case means there is no reciprocity of obligation, however, as a solvent carrier who is the last carrier on the risk cannot apportion against CIGA for an insolvent carrier’s share of the loss. Wausau is correct that in the absence of an agreement between Reliance and Wausau CIGA would have administered the claim for repetitive trauma and would have sought apportionment against Wausau. Wausau’s decision to reach an agreement with Reliance renders this issue moot. We also note that based on the timeline of the stipulated facts Wausau’s agreement with Reliance was subsequent to the second injury. While Wausau may not have anticipated an agreement with Reliance for this claim would cause it to bear a greater burden of the claim were Reliance to become insolvent, such a result is a consequence of that agreement, as Wausau undertook to administer the claim itself.

After considering the appellants’ legal arguments challenging our reasoning in Christensen, we find them unpersuasive. We believe that the trial commissioner’s decision in the present case is entirely consistent with our statutes and the applicable appellate precedent. We affirm the Finding and Award and dismiss this appeal.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 We note that postponements and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 CIGA is also described in the Finding and Award as “Guaranty Fund Management Services.” GMFS is a major multi-state organization based in Boston which manages a number of guaranty funds, including CIGA, in the North and Mid-Atlantic regions. BACK TO TEXT

3 “Covered claims” are defined under Sec. 38a-838 (Formerly 38-275) as follows:

(5) “Covered claim” means an unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage and subject to the applicable limits of an insurance policy to which sections 38a-836 to 38a-853, inclusive, apply issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1971, and (A) the claimant or insured is a resident of this state at the time of the insured event; or (B) the claim is a first party claim for damage to property with a permanent location in this state, provided the term “covered claim” shall not include (i) any claim by or for the benefit of any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise; provided that a claim for any such amount, asserted against a person insured under a policy issued by an insurer which has become an insolvent insurer, which, if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool or underwriting association, would be a “covered claim” may be filed directly with the receiver of the insolvent insurer but in no event shall any such claim be asserted against the insured of such insolvent insurer, (ii) any claim by or on behalf of an individual who is neither a citizen of the United States nor an alien legally resident in the United States at the time of the insured event, or an entity other than an individual whose principal place of business is not in the United States at the time of the insured event, and it arises out of an accident, occurrence, offense, act, error or omission that takes place outside of the United States, or a loss to property normally located outside of the United States or, if a workers’ compensation claim, it arises out of employment outside of the United States, (iii) any claim by or on behalf of a person who is not a resident of this state, other than a claim for compensation or any other benefit which arises out of and is within the coverage of a workers’ compensation policy, against an insured whose net worth at the time the policy was issued or at any time thereafter exceeded twenty-five million dollars, provided that an insured’s net worth for purposes of this section and section 38a-844 shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries as calculated on a consolidated basis, (iv) any claim by or on behalf of an affiliate of the insolvent insurer at the time the policy was issued or at the time of the insured event, or (v) any claim arising out of a policy issued by an insurer which was not licensed to transact insurance in this state either at the time the policy was issued or when the insured event occurred. BACK TO TEXT

4 The text of this statute reads as follows:

(1) Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under sections 38a-836 to 38a-855, inclusive, shall exhaust first his rights under such policy. Any amount payable on a covered claim under said sections shall be reduced by the amount recoverable under the claimant’s insurance policy or chapter 568. BACK TO TEXT

5 We note Konovaluk reversed the finding of the trial commissioner that § 31-299b C.G.S. did not apply to cause reapportionment when CIGA held part of the risk; we based this decision on the theory the “last insurer on the risk” should not bear an excessive share of the obligation. In the present case, CIGA seeks to shift the entire risk to a solvent carrier. BACK TO TEXT

6 We find footnote #2 of Konovaluk directly applicable herein. “. . . Hunnihan [v. Mattatuck Mfg., 243 Conn. 438 (1997)] clearly rests its holding of the non-applicability of CIGA on the proposition that an insurance company made liable by the provisions of § 31-299b should not benefit from CIGA’s protection, unlike a claimant or a policy holder. If the result of an insurer’s insolvency were that a claimant or a policy holder (employer) would be “stuck holding the bag” for a portion of a valid claim, then our Supreme Court would not have absolved CIGA from responsibility in the first place. Thus, § 31-299b demands that, at minimum, the last insurer on the risk must take full responsibility for a compensable claim involving an occupational disease or repetitive trauma injury that spans the coverage periods of one or more employers or insurers, with reimbursement available afterward from other insurers. Note also, Simmons v. UTC/Sikorsky Aircraft Div., 3904 CRB-4-89-9 (September 17, 1999) (where claimant sustained two separate compensable injuries to her lungs, and CIGA inherited full liability for one injury as a result of insurer’s insolvency, CIGA could not refuse to pay for its proportional share of medical bills pursuant to 1997 voluntary agreement, as its responsibility ran directly to claimant rather than indirectly to another insurer pursuant to § 31-299b).” BACK TO TEXT

7 We note that unlike Christensen v. H & L Plastics, Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) or the Besack v. Rouselle Corp., 706 F. Sup. 385 (E.D. Pa. 1989) cases distinguished by the Supreme Court in CIGA v. State, 278 Conn. 77 (2006), reimbursement was not sought by a solvent carrier from CIGA. Rather, in the present case, CIGA would be able to seek reimbursement from a solvent carrier against its “covered claim” obligations. BACK TO TEXT

8 Counsel for CIGA has provided a massive amount of authority regarding the issues in this case. We decline to comment on most of the cases cited as we have previously held that it is the quality of a party’s argument which is dispositive before the Commission, not the quantity of documentation that is provided. Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). Much of the authority offered were from courts in other jurisdictions, which are not binding on this panel. Atkinson v. United Illuminating Company, 5064 CRB-4-06-3 (April 19, 2007). Since we have decided this case primarily on appellate precedent governing statutory interpretation under Connecticut law, we find reliance on precedent from our sister states misplaced. CIGA v. Fontaine, supra, fn. 11. BACK TO TEXT

9 The text of this statute is as follows:

Sec. 31-299b. Initial liability of last employer. Reimbursement. If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. Reimbursement shall be made within ten days of the commissioner’s order with interest, from the date of the initial payment, at twelve per cent per annum. If no appeal from the commissioner’s order is taken by any employer or insurer within twenty days, the order shall be final and may be enforced in the same manner as a judgment of the Superior Court. For purposes of this section, the Second Injury Fund shall not be deemed an employer or an insurer and shall be exempt from any liability. The amount of any compensation for which the Second Injury Fund would be liable except for the exemption provided under this section shall be reallocated among any other employers, or their insurers, who are liable for such compensation according to a ratio, the numerator of which is the percentage of the total compensation for which an employer, or its insurer, is liable and the denominator of which is the total percentage of liability of all employers, or their insurers, excluding the percentage that would have been attributable to the Second Injury Fund, for such compensation. BACK TO TEXT

10 We also note the Connecticut General Assembly did not see fit at this time to legislatively change the Supreme Court’s interpretation of the “covered claim” statute reached in Doucette v. Pomes, 247 Conn. 442, 454-464 (1999) where the Supreme Court rejected the interpretation CIGA now places on Hunnihan, supra. We also find that to the extent the CIGA Act might suggest a different result, the subsequent enactment of Public Act 05-199 controls and governs over any prior inconsistent provisions of the CIGA Act. See Beccia v. Waterbury, 185 Conn. 445, 458-459 (1981). BACK TO TEXT

11 We find the primary focus of CIGA’s arguments on exhaustion deal with situations where such tortfeasors or excess liability carriers were present, which are factually distinguishable from this case and not applicable to Chapter 568 cases. BACK TO TEXT

12 CIGA attempts to distinguish Esposito on the facts arguing that in that case it was an employer seeking reimbursement, not the claimant seeking initial payment on an award. Respondents’ Reply Brief, p. 7. We fail to find a material difference regarding the legal aspects herein, especially as this does lead credence to our conclusion that the claimant does have a “covered claim” under § 38a-838(5)(a) C.G.S. We do note that CIGA reiterates the position that we rejected in Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008) i.e., that they owe no duty to injured claimants seeking relief before this Commission; claiming in that case they were the sole judge as to whether their actions were “reasonable.” Since our statute “is remedial in nature and its provisions are to be broadly construed,” Powers v. Hotel Bond Co., 89 Conn. 143 (1915), we rejected this abdication of responsibility. BACK TO TEXT

13 CIGA goes to some length to argue that subsequent precedent limited the Supreme Court’s holding in Connecticut Insurance Guaranty Assn. v. Union Carbide Corp., 217 Conn. 371 (1991) and a later Appellate Court decision, Connecticut Insurance Guaranty Assn. v. Zasun, 52 Conn. App. 212 (1999) which limited the applicability of the exhaustion statute. Respondents’ Brief, pp. 19-23. However, we find the case cited as authority for this point, Robinson v. Gailno, 275 Conn. 290 (2005) did not serve to limit the applicability of those cases, and is clearly distinguishable on the facts. Robinson involved issues of subrogation in a case where there was a tortfeasor, and did not involve Chapter 568. In addition, while CIGA was not liable for a judgment based on the trial court’s decision in Robinson, the Supreme Court reversed the judgment and remanded the matter for a new trial. The Robinson decision did not cite Union Carbide as authority; hence, we are puzzled as how it limited the prior decision. Subsequent precedent in Esposito, supra, and Giglio, supra, cite Union Carbide for the proposition that the purpose of the exhaustion statute was solely to prevent double recoveries; similar to the statutory terms of § 31-293 C.G.S. We therefore find CIGA’s argument unmeritorious. BACK TO TEXT

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