Dennys Inc v. Workers Comp Appeals Bd

In Denny's Inc. v. Workers' Comp. Appeals Bd. (2003) 104 Cal.App.4th 1433, an employee claimed that she suffered a cumulative injury and the year-long cumulative injury period spanned May 22, 1996, to May 22, 1997. (Denny's, supra, 104 Cal.App.4th at p. 1436.) The employer was self-insured through July 31, 1996. (Ibid.) Thereafter, it was covered by a primary workers' compensation policy from a private insurer. When the insurer was declared insolvent, the employer sought reimbursement from CIGA. The court concluded that the self-insured retention was other insurance. The court noted that "our determination comports with the intent of the Guarantee Act. As an insurer of last resort, CIGA assumes responsibility for claims only when no secondary insurer is available. The Legislature did not establish ... CIGA to protect Denny's as a self-insurer, but rather, to protect the injured employee as a member of the insured public by ensuring she received a full disability award." (Id. at pp. 1441-1442.) The Denny's court went on to explain: "We also find no reason to assess liability against CIGA on equity grounds. As a self-insurer, Denny's placed itself in the position of a private insurer. If Denny's had been covered by a third party insurer instead of being self-insured during the first portion of the employee's cumulative injury period, that insurer would be liable for the entire disability award. Denny's made a risk-management decision to self-insure, gambling that it could lower its costs by not purchasing third party workers' compensation insurance. Denny's cannot reap the benefits of self-insurance without accepting its burdens. Moreover, Denny's could have limited its liability by purchasing 'a special excess workers' compensation policy to discharge any or all of its continuing obligations as a self-insurer to pay compensation or to secure the payment of compensation.' By not purchasing a special excess workers' compensation policy, Denny's effectively chose not to insulate itself from the long tail of potential self-insurance liability." (Denny's, supra, 104 Cal.App.4th at p. 1442.)