Bacallao, Amalia v. Javier H. Sanabria DBA Custom Cleaning Service

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

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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]

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