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SCF General Insurance Co. v. Industrial Comm'n

Court of Appeals of Arizona, First Division

February 24, 2015

SCF GENERAL INSURANCE COMPANY, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, DAVID S. JENSEN, Respondent Employee, WALIA, LLC/101 TOWING, Respondent Employer, SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent Party in Interest

Special Action - Industrial Commission. ICA Claim No. 20130-320239, Carrier Claim No. 13G00161. Allen B. Shayo, Administrative Law Judge.

SCF General Insurance Company, Phoenix, By Mark A. Kendall, Counsel for Petitioner Carrier.

Industrial Commission of Arizona, Phoenix, By Andrew F. Wade, Counsel for Respondent.

Phillips Law Group, P.C., Phoenix, By George V. Sarkisov, Counsel for Respondent Employee.

Carm R. Moehle, P.C., Phoenix, By Carm R. Moehle, Counsel for Respondent Employer.

Special Fund Division/No Insurance Section, Phoenix, By Stephen D. Ball, Counsel for Respondent Party in Interest.

Presiding Judge Jon W. Thompson delivered the Opinion of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined.

OPINION

Page 1286

[236 Ariz. 546] Jon W. Thompson, Judge:

[¶1] This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review finding that the respondent employer, Walia, LLC (Walia), had workers' compensation coverage in effect at the time the respondent employee (claimant) sustained his January 24, 2013 industrial injury. The petitioner carrier, SCF General Insurance Company (SCF), raises four issues:

(1) whether the administrative law judge (ALJ) erred by finding that SCF failed to meet its burden of proof under Arizona Revised Statutes (A.R.S.) § 20-1109 (the rescission statute);
(2) whether SCF was required to comply with A.R.S. § 23-961(I) (the cancellation statute) before it could rescind Walia's workers' compensation coverage;
(3) whether SCF and Walia entered into a binding agreement for insurance pursuant to A.R.S. § 20-1120; and
(4) whether SCF waived its right to rescind Walia's insurance policy.

Because we hold that the ALJ erroneously found the continuing duty rule inapplicable and erroneously found that A.R.S. § 23-961(I) precluded SCF from rescinding ...


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