Workers’ Compensation — Guaranty Association – Truck Driver – Association’s Insurance Program – Statutory Employer

Plaintiff, an owner-operator truck driver, paid for workers’ compensation insurance through a program operated by America Emerald Transportation Services, Inc. (AETS), and AETS’s insurer, Guarantee Insurance Co. (GIC), paid plaintiff’s compensable claim until GIC was liquidated. However, since AETS was the only named insured in the policy, plaintiff was not an insured under the policy, so the North Carolina Insurance Guaranty Association was not required to pay plaintiff’s claim once GIC became insolvent.

We affirm the Industrial Commission’s ruling that the company for which plaintiff was driving is responsible for his workers’ compensation benefits.

Coverage

As written, the GIC policy only provided workers’ compensation coverage to AETS. None of the participating owner-drivers or motor carriers were identified in the policy or added via endorsement.

The Commission applied the Insurance Guaranty Association Act’s definition of “covered claim” when it concluded that “the worker’s compensation insurance policy in question, as issued by GIC, only provided coverage to AETS as the insured.”

The liberal construction that we accord the Workers’ Compensation Act does not extend to the Guaranty Act.

The Commission properly recognized that the Guaranty Act’s definition of “covered claim” intentionally “limit[s] any inquiry into whether a claim is a ‘covered claim’ under the … Act to the terms of the policy in question at the time it was initially issued by the now-insolvent insurer.” See G.S. § 58-48-20(4).

Estoppel

Although an employer who files a Form 60 waives the right to contest a claim that it is liable for a claimant’s injury, and filing of a Form 60 is an admission of compensability, not employment status. The fact that Patriot Risk Services, Inc., filed a Form 60 naming AETS as the employer does not estop NCIGA from denying liability for plaintiff’s claim.

Moreover, NCIGA was a “stranger” to the filing of the Form 60; as such, neither equitable estoppel nor quasi-estoppel may be invoked to override the plain text of the Guaranty Act, which requires the presence of a “covered claim” in order to trigger NCIGA’s obligations.

Plaintiff’s Employer

Applying the statutory test of G.S. § 97-19.1(a), the Commission found that Watkins & Shepard Trucking, Inc. (W&S), “was a [principal] contractor within the meaning of N.C. Gen. Stat. § 97- 19.1(a), and … that Plaintiff was ‘an individual in the interstate or intrastate trucking industry who operates a truck … licensed by the USDOT,’ pursuant to N.C. Gen. Stat. § 97-19.1(a)[.]” Accordingly, the Commission concluded that W & S was “liable as an employer” under § 97-19.1(a) because it “contracted with Plaintiff to operate a truck federally licensed” through W & S, and did not “secure the payment of compensation” in accordance with the statutory requirements of G.S. § 97-93(a).

Plaintiff’s participation in the AETS program was not equivalent to W & S’s compliance with § 97-19.1(a), in that plaintiff did not “secure the payment of compensation in the manner provided for employers set forth in G.S. 97-93 for himself personally and for his employees and subcontractors, if any[.]” § 97-19.1(a).

The filing of the Form 60 conclusively established that plaintiff’s injury was compensable and that GIC was liable; nevertheless, it did not conclusively foreclose W & S’s status as plaintiff’s statutory employer under § 97-19.1(a).

Reimbursement Request

After GIS’s insolvency, NCIGA made payments under a reservation of right to determine coverage under the Guaranty Act. Since NCIGA’s request for reimbursement had no effect on the rights of plaintiff, the Commission correctly ruled that it did not have jurisdiction to order that NCIGA be reimbursed for benefits paid to or on behalf of plaintiff.

Affirmed.

Vizcaino v. American Emerald Transportation Services, Inc. (Lawyers Weekly No. 012-100-22, 29 pp.) (Valerie Zachary, J.) Appealed from the Industrial Commission. Christian Ayers and John Ayers for plaintiff; Ben Greenberg, Allegra Sinclair, Joseph Eason, Christopher Blake and Matthew Blake for defendants. 2022-NCCOA-155