Estate of Boyle v. WW Osborne
Fireman's Fund Insurance Company, The American Insurance Company
February 28, 2017
14-Day Rule Notice of Injury Interlocutory Appeal Service of Petitions
Summary from the Troubh Heisler Attorneys
Boyle’s husband died of mesothelioma, and she filed a petition for death benefits against Osborne and two alleged insurers, Fireman's Fund and American Insurance. Boyle attempted to serve her petition by certified mail to all three respondents, but the petitions sent to Osborne and American were returned as undeliverable. The return receipt from Fireman's showed that the petitions were delivered there, but it failed to show the person who received them or the date of receipt. A year and a half later, Boyle filed a petition for payment, alleging a 14-day violation.
Judge Greene (now retired) denied the petition for order of payment on the grounds that service of the petitions was successful only as to Fireman’s, which is not the actual insurer for Osborne. Although American was a subsidiary of Fireman’s, and a Fireman's adjuster finally filed the Notice of Controversy for both American and Osborne, Judge Greene found Fireman’s and American were different entities, so the initial service of the petition on Fireman's did not start the 14-day period running.
Boyle filed an interlocutory appeal, which the Appellate Division accepted. Although the WCB amended the 14-day rule in 2012 and expressly provided that it applied to all dates of injury and to pending cases, Boyle argued that the petition was served under the old rule, which should apply. The Appellate Division found that under both the old and new 14-day rules, the petition must be served on the correct insurer to start the 14-day rule running. Although Osborne, Fireman’s and American avoided 14-day liability in this case, Maine employers and insurers can avoid litigation costs and onerous penalties by filing NOCs upon first notice of dubious claims.