Senate Bill S5604

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 5604                                                  A. 8197

                       2011-2012 Regular Sessions

                      S E N A T E - A S S E M B L Y

                              June 6, 2011
                               ___________

IN SENATE -- Introduced by Sen. ADDABBO -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Labor

IN  ASSEMBLY  -- Introduced by M. of A. WRIGHT -- read once and referred
  to the Committee on Labor

AN ACT to amend the workers' compensation law, in relation to establish-
  ing a private right of action against non-compliant employers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  workers' compensation law is amended by adding a new
section 138 to read as follows:
  S 138. PRIVATE RIGHT OF ACTION. 1. RIGHT ESTABLISHED.  NOTWITHSTANDING
ANY OTHER PROVISION OF LAW TO THE CONTRARY, EMPLOYEES, OR IN THE CASE OF
DEATH OF THE EMPLOYEE, SUCH EMPLOYEE'S DEPENDENTS AND INSURANCE CARRIERS
SHALL HAVE THE RIGHT TO FILE A CIVIL  SUIT,  IN  A  COURT  OF  COMPETENT
JURISDICTION, AGAINST AN EMPLOYER AS PROVIDED HEREIN.
  2.  CLAIMS. (A) WHEN A CLAIM FOR COMPENSATION IS FILED BY AN EMPLOYEE,
OR IN THE CASE OF DEATH OF THE EMPLOYEE, BY THE  EMPLOYEE'S  DEPENDENTS,
AND  THE  EMPLOYER  HAS  FAILED TO SECURE THE PAYMENT OF COMPENSATION IN
ACCORDANCE WITH SECTION FIFTY OF THIS CHAPTER, TO MAKE DEPOSIT OF  SECU-
RITY  IN  ACCORDANCE  WITH  SECTION  TWENTY-SIX OF THIS CHAPTER, TO MAKE
PAYMENT OF COMPENSATION INTO THE FUND CREATED UNDER SECTION TWENTY-SIX-A
OF THIS CHAPTER ACCORDING TO THE TERMS OF ANY AWARD  INCLUDING,  WITHOUT
LIMITATION,  AWARDS  MADE  PURSUANT TO SUBDIVISION FIVE OF SECTION THIR-
TEEN-G, SUBDIVISION TWO  OF  SECTION  THIRTEEN-F,  SUBDIVISION  FIVE  OF
SECTION  THIRTEEN-K, SUBDIVISION FIVE OF SECTION THIRTEEN-L AND SUBDIVI-
SION SIX OF SECTION THIRTEEN-M OF THIS ARTICLE, OR TO MAKE PAYMENT ON  A
PREMIUM  IN  THREE  CONSECUTIVE  CALENDAR MONTHS, PROVIDED, THAT PARTIAL
PAYMENT SHALL CONSTITUTE NON-PAYMENT, SUCH EMPLOYEE OR EMPLOYEE'S DEPEN-
DENTS MAY INSTITUTE AN ACTION IN  A  COURT  OF  COMPETENT  JURISDICTION,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11884-01-1

              

S. 5604                             2                            A. 8197

SUBJECT  TO  THE LIMITATIONS SET FORTH IN SUBDIVISIONS THREE AND FOUR OF
THIS SECTION.
  (B)  WHEN  A CLAIM FOR COMPENSATION IS FILED BY AN EMPLOYEE, OR IN THE
CASE OF DEATH OF THE EMPLOYEE, BY THE  EMPLOYEE'S  DEPENDENTS,  AND  THE
EMPLOYER  HAS FAILED TO SECURE THE PAYMENT OF COMPENSATION IN ACCORDANCE
WITH SECTION FIFTY OF THIS CHAPTER,  TO  MAKE  DEPOSIT  OF  SECURITY  IN
ACCORDANCE  WITH  SECTION TWENTY-SIX OF THIS CHAPTER, TO MAKE PAYMENT OF
COMPENSATION INTO THE FUND CREATED UNDER SECTION  TWENTY-SIX-A  OF  THIS
CHAPTER  ACCORDING  TO THE TERMS OF ANY AWARD INCLUDING, WITHOUT LIMITA-
TION, AWARDS MADE PURSUANT TO SUBDIVISION FIVE  OF  SECTION  THIRTEEN-G,
SUBDIVISION TWO OF SECTION THIRTEEN-F, SUBDIVISION FIVE OF SECTION THIR-
TEEN-K,  SUBDIVISION  FIVE  OF SECTION THIRTEEN-L AND SUBDIVISION SIX OF
SECTION THIRTEEN-M OF THIS ARTICLE, OR TO MAKE PAYMENT ON A  PREMIUM  IN
THREE  CONSECUTIVE CALENDAR MONTHS, PROVIDED, THAT PARTIAL PAYMENT SHALL
CONSTITUTE NON-PAYMENT, AN  INSURER  OR  INSURERS  THAT  HAD  PREVIOUSLY
INSURED  SUCH  EMPLOYER  MAY INSTITUTE AN ACTION IN A COURT OF COMPETENT
JURISDICTION, SUBJECT TO THE LIMITATIONS SET FORTH IN SUBDIVISIONS THREE
AND FOUR OF THIS SECTION AND PROVIDED THAT IN THE CASE OF NON-PAYMENT OF
A PREMIUM ONLY THE INSURER AT THE TIME OF NON-PAYMENT MAY  INSTITUTE  AN
ACTION AND PROVIDED FURTHER, THAT IN SUCH INSTANCE AN EMPLOYEE DESCRIBED
IN  PARAGRAPH  (A)  OF  THIS SUBDIVISION MAY ALSO FILE AN ACTION AGAINST
SUCH EMPLOYER.
  3. NOTICE. (A) A PROCEEDING COMMENCED  UNDER  THIS  SECTION  MAY  ONLY
BEGIN  NINETY  DAYS AFTER THE EMPLOYEE OR INSURER HAS PROVIDED NOTICE OF
COMPLAINT  AND  SERVED  SUCH  NOTICE  CONSISTENT  WITH  THE   APPLICABLE
PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES ON SERVICE OF PROCESS.
  (B)  WHENEVER  AN ACTION IS BROUGHT UNDER THIS SECTION FOR THE EMPLOY-
ER'S FAILURE TO MAKE PAYMENTS ON A PREMIUM FOR THREE CONSECUTIVE  CALEN-
DAR  MONTHS,  NO  CAUSE  OF  ACTION  SHALL  BE  SUSTAINED IF THE INSURER
COLLECTS, OR ATTEMPTS TO COLLECT THE UNPAID PREMIUM  DURING  THE  NOTICE
PERIOD PROVIDED FOR IN PARAGRAPH (A) OF THIS SUBDIVISION.
  4.  PENALTIES.  (A)  A  PLAINTIFF  THAT COMMENCES AN ACTION UNDER THIS
SECTION SHALL BE ENTITLED  TO  TWENTY-FIVE  PERCENT  OF  THE  EMPLOYER'S
UNPAID  PREMIUM  OR  TWENTY-FIVE  THOUSAND DOLLARS, PROVIDED THAT IN THE
CASE OF AN EMPLOYER SUBJECT TO SECTION TWENTY-SIX-A OF THIS CHAPTER, THE
PREMIUM SHALL BE CALCULATED USING THE PREVAILING RATES  OF  COVERAGE  IN
THE  GEOGRAPHICAL  AREA  IN  WHICH THE EMPLOYER OPERATES, PROVIDED THAT,
SHOULD SUFFICIENT FACTS EXIST TO SHOW THAT THE EMPLOYER OPERATES  STATE-
WIDE, THE PREVAILING RATES OF THE STATE INSURANCE FUND SHALL BE USED.
  (B)  A  PLAINTIFF THAT COMMENCES AN ACTION UNDER THIS SECTION SHALL BE
ENTITLED TO PUNITIVE DAMAGES UP TO TWENTY-FIVE THOUSAND DOLLARS.
  (C) A PLAINTIFF THAT COMMENCES AN ACTION UNDER THIS SECTION  SHALL  BE
ENTITLED TO ALL COURT COSTS AND REASONABLE ATTORNEY'S FEES.
  (D) THE BALANCE OF ANY SETTLEMENT UNDER THIS SECTION SHALL BE DEPOSIT-
ED  IN  THE  UNINSURED  EMPLOYER'S  FUND ESTABLISHED PURSUANT TO SECTION
TWENTY-SIX-A OF THIS CHAPTER.
  S 2. This act shall take effect one year after it shall have become  a
law.