WILLIAMS v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 2, California.

Gaylord WILLIAMS et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, Allstate Insurance Company et al., Respondents.

No. B075796.

Decided: August 04, 1994

John W. Harris, Los Angeles, for petitioners. John M. Rea, Chief Counsel, Albert Vieri, Sr. Counsel, Anthony Mischel, Staff Counsel, and Zonni, Ginocchio & Taylor and George Woolverton, Glendale, for respondents.

Petitioners, Gaylord and Eloise Williams, hired Louis Baity, an unlicensed contractor also known as Luy Bery, to paint an apartment building they owned.   The Williamses had asked the agent who sold them their dwelling and liability insurance policy with respondent Allstate Insurance Company (Allstate) for full coverage on the property.   Eloise Williams testified that the agent told her they would have full coverage under the policy for any occurrence on the property.   Felix Nunez (applicant), an employee of the contractor, sustained injuries.   It is undisputed that, because Mr. Baity had no contractor's license, applicant was also an employee of the Williamses on the date of injury.  (Blew v. Horner (1986) 187 Cal.App.3d 1380, 1389–1390, 232 Cal.Rptr. 660.)

After various proceedings, respondent Workers' Compensation Appeals Board (Board) ordered the workers' compensation judge (WCJ) to issue findings and a new opinion on the issue of whether Allstate was estopped to deny workers' compensation insurance coverage.   In a supplemental report on a petition for reconsideration by Allstate, the WCJ found that Allstate was estopped to deny workers' compensation coverage.   However, the Board then directed the WCJ to issue formal findings on estoppel, and the WCJ responded by finding there was no estoppel to deny workers' compensation insurance coverage.   The Board denied the Williamses' petition for reconsideration.   The Williamses petitioned for, and we have issued, a writ of review.   We conclude that the Board erred in finding that Allstate Insurance Company was not estopped to deny workers' compensation coverage.   We annul the order denying reconsideration and remand the matter to the Board.

FACTS

In 1982 Gaylord and Eloise Williams bought a five-unit apartment building on San Vicente Boulevard in Los Angeles.   When they purchased the property, they obtained a landlord's dwelling and liability policy on the property (a “customizer” policy) from Allstate Insurance Company.   The policy contained a workers' compensation exclusion.

The policy provided that the parties insured for liability coverage included the named insured (Gaylord Williams), the spouse of the named insured (Eloise Williams), and “[y]our employees while acting within the course and scope of their employment.”   The policy provided that there were exclusions for “[a]ny obligations that any persons insured ․ have under workers' compensation,” “[a]ny bodily injury to anyone employed by any persons insured while acting within the course and scope of their employment,” and “[b]odily injury to any of your employees that result from the activities of another employee(s) who is acting within the course and scope of their employment.”   The policy further provided that there was an exclusion for “[m]edical expenses for anyone if their injuries are covered under any workers' compensation ․ law.”

Steven Chang, a commercial underwriting manager at Allstate, testified that no premium was paid for workers' compensation coverage and there was no intent to cover workers' compensation.   A workers' compensation policy for a landlord would have been sold separately although Allstate offers workers' compensation coverage in its homeowner's policy.

Paul Myro testified that he wrote the policy on the San Vicente property.   According to the WCJ's summary of evidence for the morning session of the June 20, 1990, hearing, Mr. Myro stated:  “The San Vicente building had full coverage.   He did not tell [the Williamses] that they would not be covered for workers' compensation under the business policy.”

 At the hearing on June 27, 1990, Mr. Myro testified that about 1979 or 1980 he sold the Williamses their homeowner's policy with Allstate.   The homeowner's policy had workers' compensation coverage, which was included for an additional premium of $5.   A workers' compensation policy for commercial property would require a $2,500 premium.   It would have been necessary for Mr. Williams and any employees to reside on the property.   Mr. Myro stated he told the Williamses that they could not get workers' compensation insurance for the San Vicente property if they did not reside on the property.1  When Mr. Myro wrote the policy on the San Vicente property, he was not made aware of any employees that the Williamses had.   It is undisputed that the Williamses did not reside on the property.

Gaylord Williams testified that with another carrier he has workers' compensation insurance for a dry cleaning business.   He has homeowner's insurance with Allstate for his residence in Gardena.   On July 18, 1986, Mr. Williams hired Louis Baity to paint the San Vicente building.   At that time, Mr. Williams believed that he had coverage for any injury that would occur on the property.   Mr. Baity hired Felix Nunez, who sustained injuries to his back, neck, head, and extremities while working as a painter on the San Vicente property on July 24, 1986.

Mr. Williams had probably looked at the Allstate policy on the San Vicente property before the date of injury but was uncertain how much he read.   He thought he had full coverage for any accident on the property because that was the coverage for which he asked.   When Mr. Williams purchased the San Vicente property, he did not have any employees working on that property.

Eloise Williams testified that Ernestine James wrote the Allstate homeowner's insurance policy.   That policy provides coverage for workers' compensation.   The premium statement for that policy does not indicate that a greater premium was required for the workers' compensation coverage.   Ms. Williams has workers' compensation insurance with a different carrier for a dry cleaning business.   When the Williamses purchased the San Vicente property, Mr. Myro sold them the landlord's policy because Ms. James was on vacation.   Ms. Williams told him that she wanted full coverage for anyone who got injured on the property.   She relied on Mr. Myro's expertise.   He assured her that she had full coverage for anything that happened on her property.

Ms. Williams testified that Mr. Myro did not tell her that she could not be covered for workers' compensation.   They did not discuss workers' compensation.   He knew the Williamses were not going to live in the San Vicente building.   Ms. Williams believed that she had coverage for an employee who got injured on the property.   She would not have purchased the Allstate landlord's policy if she had known that she would not have workers' compensation coverage.   Ms. Williams never read the policy.

On September 20, 1990, WCJ Robert Nakagawa found that on July 24, 1986, Mr. Nunez sustained industrial injuries to his back, neck, head, extremities, and psyche during his employment by Mr. Baity, who was uninsured, and during his employment by “Gaylord Williams, whose compensation insurance carrier was Allstate Insurance Company, and uninsured.”   The WCJ found that the injury resulted in 863/434 percent permanent disability and a need for further medical treatment.

In his opinion on decision, the WCJ stated:  “Gaylord Williams ․ credibly testified that he thought he was covered for all injuries that occurred on his property by virtue of his Allstate Customerizer [sic ] Policy.   He credibly testified he had no employees on the property and therefore did not require any Workers' Compensation coverage․  [¶] Although the Customerizer [sic ] Policy had a Workers' Compensation Exclusion, the Court is of the opinion the Customerizer [sic ] Policy should cover the injury, because Mr. Williams believed he had ‘full coverage’․  [¶] Furthermore, since Mr. Williams' homeowner policy included workers' compensation coverage for the type of situation which occurred in this case, the Court is of the opinion Mr. Williams would have [reason to] assume that his liability policy would also apply.”

Allstate petitioned for reconsideration.   In his report on Allstate's petition, the WCJ recommended that the petition be granted on the issue of psychiatric permanent disability.   The WCJ reiterated that Mr. Williams's testimony that he thought he was covered for all injuries that occurred on the property was credible.   The WCJ stated that the Allstate customizer policy should cover applicant's injury because Mr. Williams had a reasonable basis for believing that he was covered for all injuries that occurred on the San Vicente property.

The Board granted reconsideration.   In a decision after reconsideration dated June 12, 1991, the Board stated that, before reformation of an insurance contract may be ordered or an estoppel applied, there must be sufficient evidence regarding the intentions of the parties and the knowledge of the carrier's agents.   Based on the WCJ's recommendation regarding the issue of psychiatric disability, the Board rescinded the WCJ's findings and returned the matter to the trial level for further proceedings and a new decision.   The Board stated that, on remand, the WCJ could consider the issues of reformation and estoppel and make specific findings on necessary elements before deciding the issues.

At the hearing after remand, the record was not further developed on the issues of reformation and estoppel.   On January 8, 1992, the WCJ found that on July 24, 1986, applicant sustained industrial injuries to his back, neck, head, and extremities during his employment by Mr. Baity, who was uninsured, and by Mr. Williams.2  The WCJ found that Mr. Williams was also uninsured.   In his opinion on decision, the WCJ stated that, based on the copy of the landlord's policy that was received in evidence, the WCJ found that Mr. Williams was not covered by Allstate for workers' compensation under the August 18, 1986, through 1987 policy period.3  The WCJ stated that, because Ms. Williams was not named in the policy, she was not covered for workers' compensation.   The WCJ indicated that he found Mr. Chang's testimony credible.   Based on Mr. Chang's testimony, the WCJ determined the landlord's policy should not be reformed to include coverage for workers' compensation.

The Williamses petitioned for reconsideration.   In his report on the Williamses' petition, the WCJ stated that Mr. Chang credibly testified that there was no intent to cover workers' compensation and that no premium for workers' compensation coverage was paid.   The WCJ reiterated the discussion from his most recent opinion.

On March 31, 1992, the Board granted reconsideration, rescinded the WCJ's findings, and returned the matter to the trial level for further proceedings and a new decision.   The Board stated that it agreed there were no persuasive grounds to reform the insurance contract.   The Board noted, however, that the WCJ had failed to consider the issue of whether estoppel should apply.   The Board stated it was necessary to “allow” the WCJ to consider that issue and to file a new decision.

After remand to the WCJ, no further evidence was introduced on the issue of estoppel.   On September 11, 1992, the WCJ found that on July 24, 1986, applicant sustained industrial injuries to his back, neck, head, and extremities during his employment by Mr. Baity, who was uninsured, and during his employment by Mr. Williams.   The WCJ found that Mr. Williams was insured by Allstate for workers' compensation on the date of injury.

In his opinion, the WCJ stated that, based on the copy of the policy that was received in evidence, the WCJ found that Mr. Williams was not covered by Allstate for workers' compensation for the August 18, 1986, through 1987 policy period.   Because Ms. Williams was not named in the policy, the WCJ found that she was not covered for workers' compensation.   The WCJ further stated that Mr. Williams credibly testified that he thought he was covered for all injuries on the San Vicente property.

On the issue of estoppel to deny coverage, the WCJ stated:  “The Court is of the opinion the parties intended to cover all injuries on the property and that workers' compensation insurance simply did not apply, because Gaylord Williams did not have any employees on the premises.  [¶] The Court is of the opinion Mr. Myro, the carrier's agent, did not know at the time of insurance whether or not an unlicensed painting contractor's day laborers would have been covered under the Allstate Customizer Policy.  [¶] The Court finds Allstate Insurance Company is estopped from denying coverages [sic ] of Gaylord Williams.”

Allstate petitioned for reconsideration.   The WCJ reiterated his brief discussion in his report on Allstate's petition.   On November 25, 1992, the Board granted reconsideration, rescinded the WCJ's findings, and returned the matter to the WCJ for further proceedings and a new decision.   In its decision after reconsideration, the Board stated that it was necessary for the WCJ to discuss the elements of equitable estoppel and to explain how they do or do not apply in the present case.   Because the WCJ had failed to do so, the Board stated that the WCJ erred in finding that Allstate was estopped to deny workers' compensation insurance coverage.

Instead of issuing new findings and a new opinion on decision, the WCJ issued a supplemental report on Allstate's petition for reconsideration.   In the supplemental report, the WCJ stated that, regarding the element that the party to be estopped must be apprised of the facts, Mr. Myro credibly testified that the Williamses did not mention any employees on the premises.   The WCJ therefore determined that Allstate did not know of any employees working on the premises.

In the supplemental report, the WCJ stated that Mr. Myro credibly testified that he wrote the insurance policy for liability, medical, and dwelling insurance.   The WCJ stated that Mr. Myro testified that the liability portion covers a person injured on the property and that Mr. Myro did not know if Allstate should have paid workers' compensation benefits.   The WCJ discussed other aspects of Mr. Myro's testimony regarding Mr. Myro's interpretation of the policy but did not discuss Mr. Myro's testimony regarding his statements to the Williamses.   The WCJ then concluded that Mr. Myro intended the policy to cover persons injured on the property and that the Williamses had a right to believe they were covered.

The WCJ further stated that Mr. Williams credibly testified that he thought he was fully covered for injuries that occurred on the property, whether or not the injured person was working.   Based on that testimony, the WCJ found that Mr. Williams was “ignorant of the lack of coverage of the painters he hired.”

Finally, the WCJ found that Mr. Williams credibly testified that he asked for full coverage on the San Vicente property but that, when he purchased the property, he did not have any employees working on it.   The WCJ stated that Ms. Williams credibly testified that she wanted full coverage for any injuries and that she thought she was covered for anyone who got hurt on the property, even if that person was working.   The WCJ stated that the Williamses “relied upon the conduct of Allstate's salesperson that they would be covered for all injuries in hiring the painters.”   The WCJ stated he found that the parties intended to cover all injuries on the property and that Allstate should be estopped from denying coverage.   The WCJ then recommended that Allstate's petition be denied.

On January 11, 1993, the Board sent the WCJ a letter stating the Board had rescinded the WCJ's findings and returned the matter to the WCJ for further proceedings and a new decision.   The Board stated:  “As indicated in our November 25, 1992 decision, this matter was returned to you so that you would consider the specific elements of estoppel and apply them to the factual situation in this case.   This procedure would require you to issue a new decision on whether defendant Allstate is estopped from denying insurance coverage in the present matter.  [¶] Accordingly, we will again return this matter to you, requesting that you evaluate this matter pursuant to our decision and thereafter issue a new decision based on the record.”

No further proceedings were held.   On January 29, 1993, the WCJ found that on July 24, 1986, applicant sustained an industrial injury to his back, neck, head, and extremities during his employment by Mr. Baity, who was uninsured, and during his employment by the Williamses.   The WCJ found that the Williamses were also uninsured.

In his opinion on decision, the WCJ stated that, based on the copy of the landlord's policy in the record, the WCJ found that Mr. Williams was not covered for workers' compensation by Allstate for the August 18, 1986, through 1987 period and that Ms. Williams was not covered for workers' compensation because she was not named in the policy.   On the issue of estoppel, the WCJ stated:  “The parties to the Allstate Customizer Policy did not contemplate Workers' Compensation coverage, because Gaylord Williams did not have any employees on the premises when he took out the policy.  [¶] When Mr. Williams hired Mr. Baity to do the painting job on his property, the Court is of the opinion that he could have ascertained whether Mr. Baity had workers ['] compensation coverage or could have inquired of Allstate Insurance Company whether he would be covered for injuries under his Allstate Customizer Policy.   The Court is of the opinion Allstate is not estopped from denying coverage.”

The Williamses petitioned for reconsideration.   In his report on the Williamses' petition, the WCJ stated that, because Allstate did not know of any employees working on the premises when it entered into the insurance contract regarding the San Vicente property, Allstate was not estopped to deny workers' compensation coverage.

On April 22, 1993, the Board denied reconsideration.   In its opinion, the Board stated:  “After apparently considering the principles of estoppel, the WCJ appears to be persuaded by the credible testimony of defendant Allstate Insurance Company's witnesses that they were not aware that defendants [Gaylord] and Eloise Williams intended to have employees working on the premises located on San Vicente Boulevard.   Because they were not apprised of the facts, Allstate Insurance Company issued a business customizer policy which specifically excluded workers' compensation benefits.   Because Allstate Insurance Company did not know that there were employees working at the San Vicente Boulevard property at the time it entered into the insurance policy contract with defendants Gaylord and Eloise Williams, Allstate Insurance Company could not have intended that Gaylord and Eloise Williams rely upon its conduct to their injury.   Accordingly, Allstate Insurance Company is not estopped from denying coverage.   We are persuaded, therefore, that the WCJ did not err in finding that defendants' Customizer Business Insurance Policy issued by Allstate Insurance Company did not include workers' compensation coverage, and therefore Gaylord and Eloise Williams, the employers, were not covered by workers' compensation insurance on July 25, 1986.” 4

DISCUSSION

Gaylord and Eloise Williams contend that the parties intended that the customizer policy would provide workers' compensation coverage for injuries occurring on the San Vicente property and that the policy should, therefore, be reformed to so provide.   The Williamses also contend that the policy is ambiguous and should be construed to provide coverage for applicant's injury.   The Williamses further contend that the Board should have determined that Allstate is estopped to deny coverage for workers' compensation.

I. The Policy Clearly Provides that Workers' Compensation Coverage is Excluded

 In Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545, the court stated:  “[A] court that is faced with an argument for coverage based on assertedly ambiguous policy language must first attempt to determine whether coverage is consistent with the insured's objectively reasonable expectations.   In so doing, the court must interpret the language in context, with regard to its intended function in the policy.  [Citation.]   This is because ‘language in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.’  [Citations.]”  (Emphasis by the Bank of the West court.)

In Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 867, 21 Cal.Rptr.2d 691, 855 P.2d 1263, the court explained that an insurance policy should be interpreted based on the mutual intention of the parties when the contract is formed.   That intent should be inferred, if possible, solely from the policy's written provisions.   The court stated that an insurance policy provision is ambiguous when it is capable of two or more constructions, both of which are reasonable.   The court explained:  “ ‘Courts will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists.’  [Citation.]”  (Ibid.)

The customizer policy clearly provides that the Williamses and their employees are covered for liability for damages arising out of an accidental event or personal injury but that workers' compensation coverage is excluded.   Because the exclusion language is narrower than the coverage language, there is no ambiguity.   The policy excludes workers' compensation coverage for applicant's injuries.  (See Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co., supra, 5 Cal.4th 854, 867, 21 Cal.Rptr.2d 691, 855 P.2d 1263;  Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545.)

II. The Board Erred in Determining That Allstate Insurance Company Is Not Estopped To Deny Coverage for Workers' Compensation

 In Granco Steel, Inc. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 191, 203–204, 65 Cal.Rptr. 287, 436 P.2d 287, the court stated:  “ ‘Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel:  (1) the party to be estopped must be apprised of the facts;  (2) he must intend that his conduct be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended;  (3) the other party must be ignorant of the true state of facts;  and (4) he must rely upon the conduct to his injury.’  [Citations.]”   In that case an insurer was held estopped to deny insurance coverage because its agent had promised that workers' compensation insurance would be provided and the employer detrimentally relied on that promise.  (Id. at pp. 204–205, 65 Cal.Rptr. 287, 436 P.2d 287.)

The WCJ's statements in the supplemental report on reconsideration that the Williamses relied on the conduct of Allstate's salesperson that they would be covered for all injuries in hiring the painters and that Allstate should be estopped from denying coverage constituted a finding that Allstate was estopped to deny workers' compensation insurance coverage.  (Cf. State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (1978) 81 Cal.App.3d 586, 590, 146 Cal.Rptr. 513 [instructions to rating specialist are findings of fact].)  The WCJ's estoppel finding in the supplemental report was supported by adequate reasoning in that report and, viewed in the light of the entire record, Ms. Williams's testimony constituted substantial evidence to support the finding of estoppel.  (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280–281, 113 Cal.Rptr. 162, 520 P.2d 978;  Granco Steel, Inc. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d at pp. 203–204, 65 Cal.Rptr. 287, 436 P.2d 287.)   The Board's instruction that the WCJ issue formal findings and an opinion did not require or permit the WCJ to issue new findings at variance with the estoppel finding contained in the supplemental report.   The Board, therefore, erred in denying the Williamses' petition for reconsideration.

Although the Board stated that Allstate and its agent were not apprised of the relevant facts because they were not aware that the Williamses intended to have employees working on the premises, the Williamses had workers' compensation coverage under their Allstate homeowner's policy and requested full coverage under the customizer policy for the San Vicente property.   Eloise Williams testified that Allstate's agent told her that she had full coverage for liability and would be protected for any injury that occurred on the premises.   Ms. Williams testified that she believed that the Williamses were covered for workers' compensation at the San Vicente property and that the Allstate customizer policy would not have been purchased if she had known there was a workers' compensation exclusion.   Because the Board did not reject the WCJ's determination as to Ms. Williams's credibility, the Board erred in finding a lack of estoppel to deny workers' compensation insurance coverage.

It was incorrect for the Board to resolve the question of whether Allstate should be estopped to deny workers' compensation coverage based on whether the Williamses expressly stated that they intended to have occasional employees work on the premises.   Any owner of a residential or commercial building will occasionally need to have repairs made to the property.   In view of the workers' compensation coverage in the Allstate homeowner's policy and the Williamses' request for full coverage for the rental property on San Vicente Boulevard, the Allstate agent reasonably should have known that the Williamses would expect workers' compensation coverage at the San Vicente property, particularly in view of his statement to Ms. Williams that there would be full coverage.

DISPOSITION

Respondent Workers' Compensation Appeals Board's April 22, 1993, order denying reconsideration is annulled, and the matter is remanded to the Workers' Compensation Appeals Board with directions to grant the Williamses' petition for reconsideration, vacate the January 29, 1993, finding that respondent Allstate Insurance Company was not estopped to deny workers' compensation insurance coverage, and reinstate the finding contained in the workers' compensation judge's supplemental report on reconsideration that Allstate Insurance Company is estopped to deny workers' compensation insurance coverage.

Petitioners shall recover the costs they incurred in this writ proceeding.

FOOTNOTES

1.   During questioning of Mr. Myro by John Harris, the Williamses' attorney, the following colloquy occurred:  “Q Were you aware that Mr. Chang testified that Allstate Insurance doesn't even sell a [workers'] compensation policy for commercial property?  ․ [¶] MR. MYRO:  I understand that for me to write that particular policy for Mr. and Mrs. Williams, he'd have to live on the property—at the property address.   He would have to reside there and occasional workers would have to reside there, also.  [¶] BY MR. HARRIS:  So before you could write a [workers'] compensation policy on the property, Mr. Williams would have to reside on the property?  [¶] A  Exactly at the property.  [¶] Q  And you are also saying that an employee would have to reside on the property?  [¶] A  Exactly.  [¶] Q  So if he wants a policy and neither the owner Mr. Williams resides on the property nor an employee, you couldn't write a policy?  [¶] A  Right.  [¶] Q  When you wrote the policy on the San Vicente property, did you tell the Williamses that they couldn't get workers' compensation insurance if they didn't reside on the property?  [¶] A  Exactly.  [¶] Q  And that's despite the fact that you told them they [had] full coverage?  [¶] A  Full coverage for those three areas[—]liability, medical and dwelling.  [¶] Q  Isn't it true that you told the Williamses that they had full coverage?  [¶] A  Well, I didn't include workers' compensation in the policy, if that's what you mean by full coverage.  [¶] Q  You testified earlier at your last day of trial you said that you told the Williamses that they had full coverage.  [¶] A  Full coverage, a customizer policy.  [¶] Q  So now your testimony is that they had full coverage, not just full coverage, not just full coverage blanketly, but full coverage with the limitations.  [¶] A  You are comparing full coverage on a homeowner's policy.   That is different than a full coverage on a customizer policy.   The homeowner's policy could include the dwelling, medical, liability, and workers' compensation, where a customizer policy for the San Vicente residence would be liability, medical, and dwelling only.  [¶] Q  So if the coverages are different obviously a homeowner's policy and commercial policy—[¶] A  Exactly.  [¶] Q  Yet you say under both if you buy what is allowed on the policy is full coverage.  [¶] A  For which policy?  [¶] Q  I am saying under the commercial policy you say it is full coverage.  [¶] A  Full coverage was allowed on the policy, yes.  [¶] Q  So, it is your testimony you said there was full coverage but there are events that aren't covered under that policy?  [¶] A  Of course, there are a lot of exclusions in the policy.  [¶] Q  And obviously they didn't have coverage for someone coming on to the property.  [¶] A  They didn't qualify for the coverage.  [¶] Q  And did you tell them they didn't qualify?  [¶] A  I couldn't write the policy.   The workers' compensation policy is a completely different policy like auto insurance.  [¶] Q  My question is did you tell them that you couldn't write a policy for them?  [¶] A  Yes.  [¶] Q  Now, when did you recall this because when your deposition was taken, you didn't remember that?  [¶] A  Didn't remember—[¶] Q  That you told them that they couldn't have workers' compensation coverage.  [¶] A  Well, I told them that.  [¶] Q  In other words, you remember now?  [¶] A  I always remembered.  [¶] Q  You always, but you chose not to remember when your deposition was taken.  [¶] A  Right, I mean—can we go over the deposition?   I think I would never refuse.   I didn't write the workers' compensation coverage.   If the policy is there or is not there, I didn't write it.”   The transcript of Mr. Myro's deposition was not received in evidence.In the WCJ's summaries of evidence, the WCJ did not mention Mr. Myro's testimony that he told the Williamses about the exclusion.   Because Allstate did not point out this defect when it petitioned for reconsideration, Mr. Myro's testimony that he informed the Williamses of the exclusion may not be relied upon to support a finding of lack of estoppel to deny workers' compensation coverage.  (See Allied Comp. Ins. Co. v. Ind. Acc. Com. (1961) 57 Cal.2d 115, 120–121, 17 Cal.Rptr. 817, 367 P.2d 409.)

2.   At the parties' request, determination of the issue of psychiatric injury was deferred.   The WCJ found applicant was 511/212 percent permanently disabled.

3.   The record reflects that for the August 18, 1986, to August 18, 1987, policy period, there was an endorsement excluding liability for “[a]ny bodily injury to anyone employed by any persons insured arising out of and in the course of his or her employment by persons insured for which the persons insured may be held liable as an employer or in any other capacity․”   It is undisputed that the Allstate landlord's policy was in effect on the date of injury in July 1986.   Throughout the litigation of this workers' compensation matter, the parties have apparently treated Allstate's exhibit A as the copy of the Allstate landlord's policy that was in effect on the date of injury.   The pertinent provisions of that policy were quoted, ante, page 754.

4.   As previously noted, the date of injury was July 24, 1986.

NOTT, Associate Justice.

BOREN, P.J., and FUKUTO, J., concur.

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