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1 Leonard D. Lerner [SBN 93086]
Michael I. Weiss [SBN 163814]
2 LAW OFFICES OF LERNER & WEISS, APC
21600 Oxnard Street, Suite 1130
3 Woodland Hills, California 91367
Telephone: (818) 986-0893 * Facsimile: (818) 385-3576
4
File No.: 18644
5
Attorneys for Plaintiff, PACIFIC COMPENSATION INSURANCE COMPANY,
6 A California Corporation
7
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
8
RENE C. DAVIDSON COURTHOUSE - LIMITED CIVIL JURISDICTION
9
10 PACIFIC COMPENSATION INSURANCE ) Case No.
COMPANY, A California Corporation )
11 ) COMPLAINT
Plaintiff, )
12 ) (Breach of Contract; Open Book Account;
vs. ) Account Stated; Reasonable Value)
13 )
KESHA VA LLC, a California limited liability ) ($6,386.00)
14 company, doing business as WASHINGTON )
INN; and DOES 1 through 25, inclusive )
15 )
Defendants. )
16 )
________________ )
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Plaintiff PACIFIC COMPENSATION INSURANCE COMPANY, A California
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Corporation alleges as follows:
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DEFINITIONS AND PRELIMINARY ALLEGATIONS:
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1. Plaintiff is a qualified corporation organized and existing under the laws of the
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State of California and is duly authorized to transact insurance business in the State of California.
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2. On information and belief, Defendant, KESHA VA LLC, is a California limited
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liability company, doing business as WASHINGTON INN in the City of Oakland, County of
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Alameda, State of California.
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3. The true names and capacities, whether individual, corporate, associate or
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otherwise, of the defendants herein designated DOES 1 through 25, inclusive, are unknown to
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COMPLAINT Pagel
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1 Plaintiff. Plaintiff will ask leave of the court to amend this Complaint to show their true names
2 and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each
3 of these fictitiously named defendants is responsible in some manner for the occurrences herein
4 alleged, and that Plaintiff's damages were proximately caused by their conduct.
5 4. On information and belief, at all times herein mentioned, defendants, and each of
6 them, were and are the duly authorized agents, co-partners, co-tenants, and co-lessees of each of
7 the said co-defendants, and at all times herein mentioned acted within the course and scope of
8 such agency, partnership, co-tenancy and lease; and each of the acts performed by each of the
9 said co-defendants as hereinafter alleged was done with the express or implied consent of the
10 other said co-defendants and for the common benefit of all said co-defendants.
11 5. On information and belief, there exists now, and there has existed at all times
12 mentioned herein, a unity of interest and ownership by and between defendant KESHA VA LLC,
13 a California limited liability company, doing business as WASHINGTON INN, and DOES 1
14 through 25, inclusive, and each of them so that any individuality and separateness between said
15 defendants, if ever any existed, has ceased; that each of said defendants are the alter ego of the
16 other; and that any adherence to the fiction of the separate existence of each of said defendants as
17 distinct from the remainder of said defendants would sanction the wrongful conduct complained
18 of herein.
19 6. The obligations and claims sued upon herein were made and entered into and are
20 due and payable in the above-mentioned judicial district and county, State of California, and are
21 not subject to the provisions of § 1812.10 and §2684.4 of the California Ci vii Code, and §365(b)
22 of the California Code of Civil Procedure.
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24 Ill
25 Ill
26 Ill
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COMPLAINT Page 2
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l FIRST CAUSE OF ACTION
2 (Breach of Contract)
3 (Against All Defendants)
4 7. Paragraphs 1 through 6, inclusive, above are incorporated herein as if fully set
5 forth.
6 8. As used herein, the term, "Debt" refers to the sum of $6,386.00.
7 9. As used herein, the term "Insurance Policy" refers to Policy No. 1024706- 1, a
8 copy of which is attached hereto and marked as Exhibit A.
9 10. As used herein, the term "Due Date" refers to the date of October 9, 2023.
10 11. Within four years preceding the commencement of this action, at the special
11 instance and request of defendants, plaintiffs sold, issued and delivered to defendants Insurance
12 Policy in writing.
13 12. Plaintiff has performed everything on its part to be performed under the Insurance
14 Policy.
15 13. The Insurance Policy contained the following terms:
16 a. "Part Five - Premium, Section E - Final Premium," of Insurance Policy
17 states, "The premium shown on the Information Page, schedules, and endorsements is an
18 estimate. The final premium will be determined after this policy ends by using the actual, not the
19 estimated, premium basis and the proper classifications and rates that lawfully apply to the
20 business and work covered by this policy."
21 b. "Part Five - Premium, Section F - Records," of Insurance Policy states,
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"You will keep records of information needed to compute premium. You will provide us with
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copies of those records when we ask for them.
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C. "Part Five - Premium, Section E - Audit," of Insurance Policy states,
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"You will let us examine and audit all your records that relate to this policy. These records
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include ledgers, journals, registers, vouchers, contracts, tax reports, payroll and disbursement
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COMPLAINT Page 3
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1 records, and programs for storing and retrieving data. We may conduct audits during regular
2 business hours during the policy period and within three years after the policy period ends."
3 14. On February 17, 2023, Deborah Feist, an auditor with Lowry & Associates, Inc.,
4 mailed a letter to the insured attempting to set up an audit and requesting documents, leaving a
5 deadline for response of March 9, 2023.
6 15. On March 9, 2023, the Auditor spoke to insurance agency receptionist for insured
7 who provided her with a telephone number and email information for the insured.
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16. On March 9, 2023, Auditor called and left a message for Carlos Rosales, the
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Managing Member of insured, stating audit forms would be sent to the email address provided
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by insurance agent. The Auditor then emailed the audit forms to Carlos Rosales with a deadline
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to respond of March 16, 2023 by end of business.
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17. On March 17, 2023, Auditor called and left a message for Carlos Rosales
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reminding of the audit and encouraging completion. The Auditor then emailed the audit forms to
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Carlos Rosales again with a deadline to respond of March 24, 2023 by end of business.
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18. On March 27, 2023, Auditor called and left a message for Carlos Rosales
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reminding of the audit and encouraging completion. The Auditor then emailed the audit forms
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again to Carlos Rosales with a final deadline to respond of April 3, 2023 by end of business.
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19. On April 10, 2023, Auditor submitted the audit as non-productive after 4 attempts
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to the insured and one to the agent.
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22. On May 22, 2023, Ally Dawson, Director of Premium Audit for Plaintiff, sent a
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letter to the Defendant with reference to the unsuccessful efforts of Plaintiff to obtain the audit
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23 and informing the Defendant that the audit for the Insurance Policy may be estimated at 300% of
24 the Estimated Annual Premium. A true and correct copy of this letter is attached hereto as
25 Exhibit B.
26 23. The Plaintiff never received any of the audit documents from the Defendant as
27 provided and requested by the Auditor, never received a date for an audit to occur, and never
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COMPLAINT Page4
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1 received any response from the May 22, 2023, letter from Ally Dawson. Therefore, the Plaintiff
2 completed the audit of the Insurance Policy as a non-productive audit.
3 24. California Insurance Code§/ 1760.1 states:
4 (a) If an employer fails to provide for access by the insurer or its
authorized representative to its records, to enable the insurer to perform an audit
5
to determine the remuneration earned by the employer's employees and by any of
6 its uninsured subcontractors and the employees of any of its uninsured
subcontractors during the policy period, the employer shall be liable to pay to the
7 insurer a total premium for the policy equal to three times the insurer's then-
current estimate of the annual premium on the expiration date of the policy. The
8
employer shall also be liable, in addition to the premium, for costs incurred by the
9 insurer in its attempts to perform an audit, after the insured has failed upon the
insurer's third request during at least a 90-day period to provide access, and the
10 insured has provided no compelling business reason for the failure. This section
shall only apply if the insurer elects to comply with the conditions set forth in
11 subdivision (d).
12 (b) "Access" shall mean access at any time during regular business hours
during the policy period and within three years after the policy period ends.
13 "Access" may also include any other time mutually agreed upon by the employer
and insurer.
14 (c) The insurer shall have and follow regular and reasonable rules and
15 procedures to notify employers of their duty to provide access to records, and to
contact employers to make appointments during regular business hours for that
16 purpose.
(d) Upon the employer's failure to provide access after the insurer's third
17 request during at least a 90-day period, the insurer may notify the employer
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through its mailing of a certified, return-receipt, document of the increased
premium and the total amount of the costs incurred by the insurer for its attempts
19 to perform an audit as described under subdivision (a). Upon the expiration of 30
days after the delivery of the notice, collection by the insurer of the amount of
20 premium and costs described under subdivision (a), less all premiums previously
paid by the employer for the policy, shall be fully enforceable and executable.
21
(e) If the employer provides for access to its records after having received
22 the notice described in subdivision (d), and if the insurer then succeeds in
performing the audit to its satisfaction, the insurer shall revise the total premium
23 and costs payable for the policy by the employer to reflect the results of its audit.
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25. By reason of the foregoing, defendants became indebted to plaintiff in the amount
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of Debt for the balance of the insurance premiums earned by plaintiff, being the agreed
26
consideration for the issuance and delivery of Insurance Policy. Said balance has not been paid
27
although payment has been demanded, and there is now due, owing and unpaid from said
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COMPLAINT Page 5
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l defendants, and each of them, to plaintiff the amount of $6,386.00, together with interest thereon
2 at the legal rate from Due Date.
3 SECOND CAUSE OF ACTION
4 (Open Book Account)
5 (Against All Defendants)
6 26. Paragraphs 1 through 6, and 8 through 25, inclusive, above are incorporated
7 herein as if fully set forth.
8 27. Within four years preceding the commencement of this action, defendants became
9 indebted to plaintiff in the amount of Debt for a balance due on a book account for insurance
10 premiums earned as a result of the sale, issuance and delivery of Insurance Policy by plaintiff to
11 defendants at defendants' request. Debt has not been paid although payment has been
12 demanded, and Debt is now due, owing and unpaid, together with interest thereon at the legal
13 rate, from Due Date.
14 THIRD CAUSE OF ACTION
15 (Account Stated)
16 (Against All Defendants)
17 28. Paragraphs 1 through 6, 8 through 25, and 27, inclusive, above are incorporated
18 herein as if fully set forth.
19 29. Within four years preceding the commencement of this action, an account was
20 stated by and between plaintiff and defendants, and each of them, wherein it was ascertained and
21 agreed that defendants owed Debt to plaintiff together with interest thereon at the legal rate from
22 Due Date.
23 FOURTH CAUSE OF ACTION
24 (Reasonable Value)
25 (Against All Defendants)
26 30. Paragraphs 1 through 6, 8 through 25, 27, and 29, inclusive, above are
27 incorporated herein as if fully set forth.
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COMPLAINT Page 6
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1 31. Within two years preceding the commencement of this action, defendants, and
2 each of them, became indebted to plaintiff in the sum of Debt for the reasonable value of
3 insurance premiums earned by plaintiff as a result of the sale, issuance and delivery of Insurance
4 Policy to defendants at defendants' request. Debt was and is the reasonable value of the earned
5 premiums. No part of Debt has been paid although payment has been demanded, and Debt is
6 now due, owing and unpaid together with interest at the legal rate from Due Date.
7 WHEREFORE, plaintiff prays for judgment against defendant, and each of them, as
8 follows:
9 On the First through Fourth Causes of Action:
1. For damages, in the sum of $6,386.00, together with interest thereon at the legal
11 rate of ten percent ( 10%) per annum from October 9, 2023;
12 2. For costs of suit incurred herein;
13 3. For such other and further relief as the Court may deem just and proper.
14
15 Dated: January 19, 2024 WEISS, A Professional Corporation
16
17
By~------------
18 L
IC AEL I. EISS
19 Attorneys for P aintiff, PACIFIC
COMPENSATION INSURANCE COMPANY, A
20 California Corporation
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COMPLAINT Page 7
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EXHIBIT A
Workers Compensation & Employers Liability Policy
WORKERS COMPENSATION AND
EMPLOYERS LIABILITY INSURANCE POLICY
In return for the payment of the premium and subject to PART ONE
all terms of this policy, we agree with you as follows : WORKERS COMPENSATION
INSURANCE
GENERAL SECTION
A. How This Insurance Applies
A. The Policy This workers compensation insurance applies to
This policy includes at its effective date the bodily injury by accident or bodily injury by
Information Page and all endorsements and disease . Bodily injury includes resulting death .
schedules listed there. It is a contract of insurance 1. Bodily injury by accident must occur during
between you (the employer named in Item I of the the policy period.
Information Page) and us (the insurer named on 2. Bodily injury by disease must be caused or
the Information Page). The only agreements aggravated by the conditions of your
relating to this insurance are stated in this policy. employment. The employee's last date of last
The terms of this policy may not be changed or exposure to the conditions causing or
waived except by endorsement issued by us to be aggravating such bodily injury by disease
part of this policy. must occur during the policy period.
B. Who is Insured B. We Will Pay
You are insured if you are an employer named in We will pay promptly when due the benefits
Item I of the Information Page. If that employer is required of you by the workers compensation law.
a partnership, and if you are one of its partners,
you are insured, but only in your capacity as an C. We Will Defend
employer of the partnership's employees. We have the right and duty to defend at our
expense any claim, proceeding or suit against you
C. Workers Compensation Law for benefits payable by this insurance. We have
Workers Compensation Law means the workers or the right to investigate and settle these claims,
workmen's compensation law and occupational proceedings or suits.
disease law of each state or territory named in Item
3.A. of the Information Page. It includes any We have no duty to defend a claim, proceeding or
amendments to that law which are in effect during suit that is not covered by this insurance.
the policy period. It does not include any federal
workers or workmen's compensation law, any D. We Will Also Pay
federal occupational disease \aw or the provisions We will also pay these costs, in addition to other
of any law that provide non-occupational disability amounts payable under this insurance, as part of
benefits. any claim, proceeding or suit we defend:
I. reasonable expenses incurred at our request,
D. State but not loss of earnings;
State means any state of the United States of 2. premiums for bonds to release attachments
America, and the District of Columbia. and for appeal bonds in bond amounts up to
the amount payable under this insurance;
E. Locations 3. litigation costs taxed against you;
This policy covers all of your workplaces listed in 4. interest on a judgment as required by law until
Items 1 or 4 of the Information Page; and it covers we offer the amount due under this insurance;
all other workplaces in Item 3.A. states unless you and
have other insurance or are self-insured for such 5. expenses we incur.
workplaces .
Page l of 6 WC 99 00 00D ( Ed . 01-1S)
E. Other Insurance 5. This insurance conforms to the parts of the
We will not pay more than our share of benefits workers compensation law that apply to:
and costs covered by this insurance and other a. benefits payable by this insurance;
insurance or self-insurance. Subject to any limits b. special taxes, payments into security or
of liability that may apply, all shares will be equal other special funds, and assessments
until the loss is paid. If any insurance or self- payable by us under that law.
insurance is exhausted, the shares of all remaining 6. Terms of this insurance that conflict with the
insurance will be equal until the loss is paid. workers compensation law are changed by this
statement to conform to that law .
F. Payments You Must Make
You are responsible for any payments in excess of Nothing in these paragraphs relieves you of your
the benefits regularly provided by the workers duties under this policy.
compensation law including those required
because: PART TWO
I. of your serious and willful misconduct· EMPLOYERS LIABILITY
2 . you knowingly employ an empl~yee in
violation of law;
3. you fail to comply with a health or safety law A. How This Insurance Applies
This employer's liability insurance applies to
or regulation; or
bodily injury by accident or bodily injury by
4. you discharge, coerce or otherwise
discriminate against any employee in violation disease. Bodily injury includes resulting death.
I. The bodily injury must arise out of and in the
of the workers compensation law.
course of the injured employee's employment
If we make any payments in excess of the benefits by you .
regularly provided by the workers compensation 2. The employment must be necessary or
law on your behalf, you will reimburse us incidental to your work in a stale or territory
listed in Item 3.A of the Information Page.
promptly.
3. Bodily injury by accident must occur during
the policy period.
G. Recovery From Others
4. Bodily injury by disease must be caused or
We have your rights, and the rights of persons
entitled to the benefits of this insurance, to recover aggravated by the conditions of your
employment. The employee's last day of last
our payments from anyone liable for the injury .
You will do everything necessary to protect those exposure to the conditions causing or
aggravating such bodily injury by disease
rights for us and to help us enforce them.
must occur during the policy period.
S. If you are sued, the original suit and any
H. Statutory Provisions
related legal actions for damages for bodily
These statements apply where they are required by
injury by accident or by disease must be
law.
brought in the United States of America its
I. As between an injured worker and us, we have
territories or possessions, or Canada. '
notice of the injury when you have notice .
2. Your default or the bankruptcy or insolvency
of you or your estate will not relieve us of our B. We Will Pay
We will pay all sums that you legally must pay as
duties under this insurance after an injury
damages because of bodily injury to your
occurs.
employees, provided the bodily injury is covered
3. We are directly and primarily liable to any
by this Employers Liability Insurance.
person entitled to the benefits payable by this
insurance. Those persons may enforce our
The damages we will pay, where recovery is
duties; so may an agency authorized by law.
permitted by law, include damages:
Enforcement may be against us or against you
and us. I. For which you are liable to a third party by
4 . Jurisdiction over you is jurisdiction over us reason of a claim or s.uit against you by that
for purposes of the workers compensation third party to recover the damages claimed
law. We are bound by decisions against you against such third party as a result of injury to
your employee;
under that law, subject to the provisions of
this policy that are not in conflict with that 2. For care and loss of services; and
law .
Page 2 of 6 \\ C 99 00 ODD (Ed. 01-1S)
3. For consequential bodily injury to a spouse,
child, parent, brother or sister of the injured 9. Bodily injury to any person in work subject to
employee; provided that these damages are the the Federal Employers' Liability Act (45
direct consequence of bodily injury that arises U.S.C. Sections SI et seq.), any other federal
out of and in the course of the injured laws obligating an employer to pay damages
employee's employment by you; and to an employee due to bodily injury arising
4 . Because of bodily injury to your employee out of or in the course of employment, or any
that arises out of and in the course of amendments to those laws;
employment, claimed against you in a I 0. Bodily injury to a master or member of the
capacity other than as employer. crew of any vessel, and does not cover
punitive damages related to your duty or
C. Exclusions obligation to provide transportation, wages,
This insurance does not cover: maintenance, and cure under any applicable
I. Liability assumed under a contract. This maritime law;
exclusion does not apply to a warranty that 11. Fines or penalties imposed for violation of
your work will be done in a workmanlike federal or state law; and
manner; 12. Damages payable under the Migrant and
2 . Punitive or exemplary damages because of Seasonal Agricultural Worker Protection Act
bodily injury to an employee employed in (29 U.S.C. Sections 1801 el seq.) and under
violation of law; any other federal law awarding damages for
3. Bodily injury to an employee while employed violation of those laws or regulations issued
in violation of law with your actual thereunder, and any amendments to those
knowledge or the actual knowledge of any of laws.
your executive officers;
4. Any obligation imposed by a workers D. We Will Defend
compensation, occupational disease, We have the right and duty to defend, at our
unemployment compensation, or disability expense, any claim, proceeding or suit against you
benefits law, or any similar law; for damages payable by this insurance. We have
5. Bodily injury intentionally caused or the right to investigate and settle these claims,
aggravated by you; proceedings and suits.
6. Bodily injury occurring outside the United
States of America, its territories or We have no duty to defend a claim, proceeding or
possessions, and Canada. This exclusion does suit that is not covered by this insurance. We have
not apply to bodily injury to a citizen or no duty to defend or continue defending after we
resident of the United States of America or have paid our applicable limit of liability under
Canada who is temporarily outside these this insurance.
countries;
7. Damages arising out of coercion, criticism, E. We Will Also Pay
demotion, evaluation, reassignment, We will also pay these costs, in addition to other
discipline, defamation, harassment, amounts payable under this insurance, as part of
humiliation, discrimination against or any claim, proceeding, or suit we defend:
termination of any employee, or any personnel I. Reasonable expenses incurred at our request
practices, policies, acts or omissions; but not loss of earnings;
8. Bodily injury to any person in work subject to 2. Premiums for bonds to release attachments
the Longshore and Harbor Workers' and for appeal bonds in bond amounts up to
Compensation Act (33 U.S .C. Sections 901 et the limit our liability under this insurance;
seq.), the Nonappropriated Fund 3. Litigation costs taxed against you;
Instrumentalities Act (5 U.S.C. Sections 8171 4. Interest on a judgment as required by law until
et seq.), the Outer Continental Shelf Lands we offer the amount due under this insurance;
Act (43 U.S.C. Sections 1331 et seq.), the and
Defense Base Act (42 U.S.C. Sections !651- 5. Expenses we incur.
\654), the Federal Mine Safety and Health
Act (30 U.S.C. Sections 801 et seq. and 901-
944), any other federal workers or workmen's
compensation law or other federal
occupational disease law, or any amendments
to these laws;
Page 3 of6 \\ C 99 00 00D (Ed. 01-15)
F. Other Insurance determine your liability. The bankruptcy or
We will not pay more than our share of damages insolvency of you or your estate will not relieve us
and costs covered by this insurance and other of our obligations under this Part.
insurance or self-insurance. Subject to any limits
of insurance or self-insurance. Subject to any PART THREE
limits of liability that apply, all shares will be OTHER STATES INSURANCE
equal until the loss is paid. If any insurance or
self-insurance is exhausted, the shares of all
A. How This Insurance Applies
remaining insurance and self-insurance will be
I. This other states insurance applies only if one
equal until the loss is paid.
or more states are shown in Item J .C. of the
Information Page.
G. Limits of Liability
2. If you begin work in any one of those states
Our liability to pay for damages is limited. Our
after the effective date of this policy and are
limits of liability are shown in Item 3.B of the
not insured or are not self-insured for such
Information Page. They apply as explained below.
work, all provisions of the policy will apply as
I. Bodily Injury by Accident. The limit shown
though that state were listed in Item 3.A of the
for "bodily injury by accident-each accident is
Information Page.
the most we will pay for all damages covered
3. We will reimburse you for the benefits
by this insurance because of bodily injury to
required by the workers compensation law of
one or more employees in any one accident.
that state if we are not permitted to pay the
A disease is not bodily injury by accident
benefits directly to persons entitled to them.
unless it results directly from bodily injury by
4. If you have work on the effective date of this
accident.
policy in any state not listed in Item 3.A. of
2 . Bodily Injury by Disease. The limit shown
the Information Page, coverage will not be
for "bodily injury by disease-policy limit" is
afforded for that state unless we are notified
the most we will pay for all damages covered
within thirty days .
by this insurance and arising out of bodily
injury by disease, regardless of the number of
B. Notice
employees who sustain bodily injury by
Tell us at once if you begin work in any state listed
disease. The limit shown for "bodily injury
in Item 3.C. of the Information Page.
by disease-each employee" is the most we will
pay for all damages because of bodily injury
by disease to any one employee. PART FOUR
Bodily Injury by disease does not include YOUR DUTIES IF INJURY OCCURS
disease that results directly from a bodily
injury by accident. Tell us at once if injury occurs that may be covered by
3. We will not pay any claims for damages after this policy. Your other duties are listed here.
we have paid the applicable limit of our I. Provide for immediate medical and other
liability under this insurance. services required by the workers
compensation law.
H. Recovery From Others 2 . Give us or our agent the names and addresses
We have your rights to recover our payment from of the injured persons and of witnesses, and
anyone liable for an injury covered by this other information we may need .
insurance. You will do everything necessary to 3. Promptly give us all notices, demands and
protect those rights for us and to help us enforce legal papers related to the injury, claim,
them. proceeding or suit.
4. Cooperate with us and assist us, as we may
I. Actions Against Us request, in the investigation, settlement or
There will be no right of action against us under defense of any claim, proceeding or suit.
this insurance unless : 5. Do nothing after an injury occurs that would
1. You have complied with all the terms of this interfere with our right to recover from others .
policy; and 6. Do not voluntarily make payments, assume
2 . The amount you owe has been determined obligations or incur expenses, except at your
with our consent or by actual trial and final own cost.
judgment.
This insurance does not give anyone the right to
add us as a defendant in an action against you to
Page 4 of 6 \\'C 99 00 00D (Ed. 01-15)
PART FIVE E. Final Premium
PREMIUM The premium shown on the lnfonnation Page,
schedules, and endorsements is an estimate. The
final premium will be determined after this policy
A. Our Manuals ends by using the actual, not the estimated,
All premiums for this policy will be determined by premium basis and the proper clas_sifications and
our manuals of rules, rates, rating plans and rates that lawfully apply to the business and work
classifications. We may change our manuals and covered by this policy. If the final premium is
apply the changes to this policy if authorized by more than the premium you paid to us, you must
law or a governmental agency regulating thi s pay us the balance. If it is less, we will refund the
insurance. balance to you. The final premium will not be less
than the highest minimum premium for the
B. Classifications classifications covered by this policy.
Item 4 of the Infonnation Page shows the rate and
premium basis for certain business or work If this policy is cancelled, final premium will be
classifications. These classifications were determined in the following way unless our
assigned based on an estimate of the exposures manuals provide otherwise:
you would have during the policy period . If your I. If we cancel, for reasons other than non-
actual exposures are not properly described by payment of premium and/or non-reporting of
those classifications, we will assign proper payroll, final premium will be calculated pro
classifications, rates and premium basis by rata based on the time this policy was in force.
endorsement to this policy. Final premium will not be less than the pro
rata share of the minimum premium.
C. Remuneration 2. If we cancel the policy for non-payment of
Premium for each work classification is pre~ium and/or non-reporting of payroll, final
determined by multiplying a rate times a premium premium may be more than pro rata; it will be
basis. Remuneration is the most common based on the time the policy was in force, and
premium basis. This premium basis includes may be increased by our short-rate
payroll and all other remuneration paid or payable cancellation table and procedure. Final
during the policy period for the services of: premium will not be less than the pro rata
I. all your officers and employees engaged in share of the minimum premium.
work covered by this policy; and 3. If you cancel, final premium may be more
2. all other persons engaged in work that could than pro rata; it will be based on the time this
make us liable under part One (Workers policy was in force, and increased by our
Compensation Insurance) of this policy. If short-rate cancellation table and procedure.
you do not have payroll records for these Final premium will not be less than the
persons, the contract price for their services minimum premium.
and materials may be used as the premium
basis. This paragraph 2 will not apply if you F. Records
give us proof that the employers of these You will keep records of infonnation needed to
persons lawfully secured their workers' compute premium. You will provide us with
compensation obligations. copies of those records when we ask for them .
D. Premium Payments G. Audit
You will pay all premium when due . You will pay You will let us examine and audit all your records
the premium eyen if part or all of the workers that relate to this policy. These records include
compensation law is not valid. ledgers, journals, registers, vouchers, contracts, tax
reports, payroll and disbursement records, and
programs for storing and retrieving data. We may
conduct the audits during regular business hours
during the policy period and within three years
after the policy period ends. Information
developed by audit will be used to determine final
premium. Insurance rate service organizations
have the same rights we have under this provision.
Page 5 of 6 \\ C 99 00 DOD (E
Preview
1 Leonard D. Lerner [SBN 93086] Michael I. Weiss [SBN 163814] 2 LAW OFFICES OF LERNER & WEISS, APC 21600 Oxnard Street, Suite 1130 3 Woodland Hills, California 91367 Telephone: (818) 986-0893 * Facsimile: (818) 385-3576 4 File No.: 18644 5 Attorneys for Plaintiff, PACIFIC COMPENSATION INSURANCE COMPANY, 6 A California Corporation 7 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA 8 RENE C. DAVIDSON COURTHOUSE - LIMITED CIVIL JURISDICTION 9 10 PACIFIC COMPENSATION INSURANCE ) Case No. COMPANY, A California Corporation ) 11 ) COMPLAINT Plaintiff, ) 12 ) (Breach of Contract; Open Book Account; vs. ) Account Stated; Reasonable Value) 13 ) KESHA VA LLC, a California limited liability ) ($6,386.00) 14 company, doing business as WASHINGTON ) INN; and DOES 1 through 25, inclusive ) 15 ) Defendants. ) 16 ) ________________ ) 17 18 Plaintiff PACIFIC COMPENSATION INSURANCE COMPANY, A California 19 Corporation alleges as follows: 20 DEFINITIONS AND PRELIMINARY ALLEGATIONS: 21 1. Plaintiff is a qualified corporation organized and existing under the laws of the 22 State of California and is duly authorized to transact insurance business in the State of California. 23 2. On information and belief, Defendant, KESHA VA LLC, is a California limited 24 liability company, doing business as WASHINGTON INN in the City of Oakland, County of 25 Alameda, State of California. 26 3. The true names and capacities, whether individual, corporate, associate or 27 otherwise, of the defendants herein designated DOES 1 through 25, inclusive, are unknown to 28 COMPLAINT Pagel Printed On Recycled Paper 1 Plaintiff. Plaintiff will ask leave of the court to amend this Complaint to show their true names 2 and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each 3 of these fictitiously named defendants is responsible in some manner for the occurrences herein 4 alleged, and that Plaintiff's damages were proximately caused by their conduct. 5 4. On information and belief, at all times herein mentioned, defendants, and each of 6 them, were and are the duly authorized agents, co-partners, co-tenants, and co-lessees of each of 7 the said co-defendants, and at all times herein mentioned acted within the course and scope of 8 such agency, partnership, co-tenancy and lease; and each of the acts performed by each of the 9 said co-defendants as hereinafter alleged was done with the express or implied consent of the 10 other said co-defendants and for the common benefit of all said co-defendants. 11 5. On information and belief, there exists now, and there has existed at all times 12 mentioned herein, a unity of interest and ownership by and between defendant KESHA VA LLC, 13 a California limited liability company, doing business as WASHINGTON INN, and DOES 1 14 through 25, inclusive, and each of them so that any individuality and separateness between said 15 defendants, if ever any existed, has ceased; that each of said defendants are the alter ego of the 16 other; and that any adherence to the fiction of the separate existence of each of said defendants as 17 distinct from the remainder of said defendants would sanction the wrongful conduct complained 18 of herein. 19 6. The obligations and claims sued upon herein were made and entered into and are 20 due and payable in the above-mentioned judicial district and county, State of California, and are 21 not subject to the provisions of § 1812.10 and §2684.4 of the California Ci vii Code, and §365(b) 22 of the California Code of Civil Procedure. 23 24 Ill 25 Ill 26 Ill 27 28 COMPLAINT Page 2 Printed On Recycled Paper l FIRST CAUSE OF ACTION 2 (Breach of Contract) 3 (Against All Defendants) 4 7. Paragraphs 1 through 6, inclusive, above are incorporated herein as if fully set 5 forth. 6 8. As used herein, the term, "Debt" refers to the sum of $6,386.00. 7 9. As used herein, the term "Insurance Policy" refers to Policy No. 1024706- 1, a 8 copy of which is attached hereto and marked as Exhibit A. 9 10. As used herein, the term "Due Date" refers to the date of October 9, 2023. 10 11. Within four years preceding the commencement of this action, at the special 11 instance and request of defendants, plaintiffs sold, issued and delivered to defendants Insurance 12 Policy in writing. 13 12. Plaintiff has performed everything on its part to be performed under the Insurance 14 Policy. 15 13. The Insurance Policy contained the following terms: 16 a. "Part Five - Premium, Section E - Final Premium," of Insurance Policy 17 states, "The premium shown on the Information Page, schedules, and endorsements is an 18 estimate. The final premium will be determined after this policy ends by using the actual, not the 19 estimated, premium basis and the proper classifications and rates that lawfully apply to the 20 business and work covered by this policy." 21 b. "Part Five - Premium, Section F - Records," of Insurance Policy states, 22 "You will keep records of information needed to compute premium. You will provide us with 23 copies of those records when we ask for them. 24 C. "Part Five - Premium, Section E - Audit," of Insurance Policy states, 25 "You will let us examine and audit all your records that relate to this policy. These records 26 include ledgers, journals, registers, vouchers, contracts, tax reports, payroll and disbursement 27 28 COMPLAINT Page 3 Printed On Recycled Paper 1 records, and programs for storing and retrieving data. We may conduct audits during regular 2 business hours during the policy period and within three years after the policy period ends." 3 14. On February 17, 2023, Deborah Feist, an auditor with Lowry & Associates, Inc., 4 mailed a letter to the insured attempting to set up an audit and requesting documents, leaving a 5 deadline for response of March 9, 2023. 6 15. On March 9, 2023, the Auditor spoke to insurance agency receptionist for insured 7 who provided her with a telephone number and email information for the insured. 8 16. On March 9, 2023, Auditor called and left a message for Carlos Rosales, the 9 Managing Member of insured, stating audit forms would be sent to the email address provided 10 by insurance agent. The Auditor then emailed the audit forms to Carlos Rosales with a deadline 11 to respond of March 16, 2023 by end of business. 12 17. On March 17, 2023, Auditor called and left a message for Carlos Rosales 13 reminding of the audit and encouraging completion. The Auditor then emailed the audit forms to 14 Carlos Rosales again with a deadline to respond of March 24, 2023 by end of business. 15 18. On March 27, 2023, Auditor called and left a message for Carlos Rosales 16 reminding of the audit and encouraging completion. The Auditor then emailed the audit forms 17 again to Carlos Rosales with a final deadline to respond of April 3, 2023 by end of business. 18 19. On April 10, 2023, Auditor submitted the audit as non-productive after 4 attempts 19 to the insured and one to the agent. 20 22. On May 22, 2023, Ally Dawson, Director of Premium Audit for Plaintiff, sent a 21 letter to the Defendant with reference to the unsuccessful efforts of Plaintiff to obtain the audit 22 23 and informing the Defendant that the audit for the Insurance Policy may be estimated at 300% of 24 the Estimated Annual Premium. A true and correct copy of this letter is attached hereto as 25 Exhibit B. 26 23. The Plaintiff never received any of the audit documents from the Defendant as 27 provided and requested by the Auditor, never received a date for an audit to occur, and never 28 COMPLAINT Page4 Printed On Recycled Paper 1 received any response from the May 22, 2023, letter from Ally Dawson. Therefore, the Plaintiff 2 completed the audit of the Insurance Policy as a non-productive audit. 3 24. California Insurance Code§/ 1760.1 states: 4 (a) If an employer fails to provide for access by the insurer or its authorized representative to its records, to enable the insurer to perform an audit 5 to determine the remuneration earned by the employer's employees and by any of 6 its uninsured subcontractors and the employees of any of its uninsured subcontractors during the policy period, the employer shall be liable to pay to the 7 insurer a total premium for the policy equal to three times the insurer's then- current estimate of the annual premium on the expiration date of the policy. The 8 employer shall also be liable, in addition to the premium, for costs incurred by the 9 insurer in its attempts to perform an audit, after the insured has failed upon the insurer's third request during at least a 90-day period to provide access, and the 10 insured has provided no compelling business reason for the failure. This section shall only apply if the insurer elects to comply with the conditions set forth in 11 subdivision (d). 12 (b) "Access" shall mean access at any time during regular business hours during the policy period and within three years after the policy period ends. 13 "Access" may also include any other time mutually agreed upon by the employer and insurer. 14 (c) The insurer shall have and follow regular and reasonable rules and 15 procedures to notify employers of their duty to provide access to records, and to contact employers to make appointments during regular business hours for that 16 purpose. (d) Upon the employer's failure to provide access after the insurer's third 17 request during at least a 90-day period, the insurer may notify the employer 18 through its mailing of a certified, return-receipt, document of the increased premium and the total amount of the costs incurred by the insurer for its attempts 19 to perform an audit as described under subdivision (a). Upon the expiration of 30 days after the delivery of the notice, collection by the insurer of the amount of 20 premium and costs described under subdivision (a), less all premiums previously paid by the employer for the policy, shall be fully enforceable and executable. 21 (e) If the employer provides for access to its records after having received 22 the notice described in subdivision (d), and if the insurer then succeeds in performing the audit to its satisfaction, the insurer shall revise the total premium 23 and costs payable for the policy by the employer to reflect the results of its audit. 24 25. By reason of the foregoing, defendants became indebted to plaintiff in the amount 25 of Debt for the balance of the insurance premiums earned by plaintiff, being the agreed 26 consideration for the issuance and delivery of Insurance Policy. Said balance has not been paid 27 although payment has been demanded, and there is now due, owing and unpaid from said 28 COMPLAINT Page 5 Printed On Recycled Paper l defendants, and each of them, to plaintiff the amount of $6,386.00, together with interest thereon 2 at the legal rate from Due Date. 3 SECOND CAUSE OF ACTION 4 (Open Book Account) 5 (Against All Defendants) 6 26. Paragraphs 1 through 6, and 8 through 25, inclusive, above are incorporated 7 herein as if fully set forth. 8 27. Within four years preceding the commencement of this action, defendants became 9 indebted to plaintiff in the amount of Debt for a balance due on a book account for insurance 10 premiums earned as a result of the sale, issuance and delivery of Insurance Policy by plaintiff to 11 defendants at defendants' request. Debt has not been paid although payment has been 12 demanded, and Debt is now due, owing and unpaid, together with interest thereon at the legal 13 rate, from Due Date. 14 THIRD CAUSE OF ACTION 15 (Account Stated) 16 (Against All Defendants) 17 28. Paragraphs 1 through 6, 8 through 25, and 27, inclusive, above are incorporated 18 herein as if fully set forth. 19 29. Within four years preceding the commencement of this action, an account was 20 stated by and between plaintiff and defendants, and each of them, wherein it was ascertained and 21 agreed that defendants owed Debt to plaintiff together with interest thereon at the legal rate from 22 Due Date. 23 FOURTH CAUSE OF ACTION 24 (Reasonable Value) 25 (Against All Defendants) 26 30. Paragraphs 1 through 6, 8 through 25, 27, and 29, inclusive, above are 27 incorporated herein as if fully set forth. 28 COMPLAINT Page 6 Printed On Recycled Paper 1 31. Within two years preceding the commencement of this action, defendants, and 2 each of them, became indebted to plaintiff in the sum of Debt for the reasonable value of 3 insurance premiums earned by plaintiff as a result of the sale, issuance and delivery of Insurance 4 Policy to defendants at defendants' request. Debt was and is the reasonable value of the earned 5 premiums. No part of Debt has been paid although payment has been demanded, and Debt is 6 now due, owing and unpaid together with interest at the legal rate from Due Date. 7 WHEREFORE, plaintiff prays for judgment against defendant, and each of them, as 8 follows: 9 On the First through Fourth Causes of Action: 1. For damages, in the sum of $6,386.00, together with interest thereon at the legal 11 rate of ten percent ( 10%) per annum from October 9, 2023; 12 2. For costs of suit incurred herein; 13 3. For such other and further relief as the Court may deem just and proper. 14 15 Dated: January 19, 2024 WEISS, A Professional Corporation 16 17 By~------------ 18 L IC AEL I. EISS 19 Attorneys for P aintiff, PACIFIC COMPENSATION INSURANCE COMPANY, A 20 California Corporation 21 22 23 24 25 26 27 28 COMPLAINT Page 7 Printed On Recycled Paper EXHIBIT A Workers Compensation & Employers Liability Policy WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY In return for the payment of the premium and subject to PART ONE all terms of this policy, we agree with you as follows : WORKERS COMPENSATION INSURANCE GENERAL SECTION A. How This Insurance Applies A. The Policy This workers compensation insurance applies to This policy includes at its effective date the bodily injury by accident or bodily injury by Information Page and all endorsements and disease . Bodily injury includes resulting death . schedules listed there. It is a contract of insurance 1. Bodily injury by accident must occur during between you (the employer named in Item I of the the policy period. Information Page) and us (the insurer named on 2. Bodily injury by disease must be caused or the Information Page). The only agreements aggravated by the conditions of your relating to this insurance are stated in this policy. employment. The employee's last date of last The terms of this policy may not be changed or exposure to the conditions causing or waived except by endorsement issued by us to be aggravating such bodily injury by disease part of this policy. must occur during the policy period. B. Who is Insured B. We Will Pay You are insured if you are an employer named in We will pay promptly when due the benefits Item I of the Information Page. If that employer is required of you by the workers compensation law. a partnership, and if you are one of its partners, you are insured, but only in your capacity as an C. We Will Defend employer of the partnership's employees. We have the right and duty to defend at our expense any claim, proceeding or suit against you C. Workers Compensation Law for benefits payable by this insurance. We have Workers Compensation Law means the workers or the right to investigate and settle these claims, workmen's compensation law and occupational proceedings or suits. disease law of each state or territory named in Item 3.A. of the Information Page. It includes any We have no duty to defend a claim, proceeding or amendments to that law which are in effect during suit that is not covered by this insurance. the policy period. It does not include any federal workers or workmen's compensation law, any D. We Will Also Pay federal occupational disease \aw or the provisions We will also pay these costs, in addition to other of any law that provide non-occupational disability amounts payable under this insurance, as part of benefits. any claim, proceeding or suit we defend: I. reasonable expenses incurred at our request, D. State but not loss of earnings; State means any state of the United States of 2. premiums for bonds to release attachments America, and the District of Columbia. and for appeal bonds in bond amounts up to the amount payable under this insurance; E. Locations 3. litigation costs taxed against you; This policy covers all of your workplaces listed in 4. interest on a judgment as required by law until Items 1 or 4 of the Information Page; and it covers we offer the amount due under this insurance; all other workplaces in Item 3.A. states unless you and have other insurance or are self-insured for such 5. expenses we incur. workplaces . Page l of 6 WC 99 00 00D ( Ed . 01-1S) E. Other Insurance 5. This insurance conforms to the parts of the We will not pay more than our share of benefits workers compensation law that apply to: and costs covered by this insurance and other a. benefits payable by this insurance; insurance or self-insurance. Subject to any limits b. special taxes, payments into security or of liability that may apply, all shares will be equal other special funds, and assessments until the loss is paid. If any insurance or self- payable by us under that law. insurance is exhausted, the shares of all remaining 6. Terms of this insurance that conflict with the insurance will be equal until the loss is paid. workers compensation law are changed by this statement to conform to that law . F. Payments You Must Make You are responsible for any payments in excess of Nothing in these paragraphs relieves you of your the benefits regularly provided by the workers duties under this policy. compensation law including those required because: PART TWO I. of your serious and willful misconduct· EMPLOYERS LIABILITY 2 . you knowingly employ an empl~yee in violation of law; 3. you fail to comply with a health or safety law A. How This Insurance Applies This employer's liability insurance applies to or regulation; or bodily injury by accident or bodily injury by 4. you discharge, coerce or otherwise discriminate against any employee in violation disease. Bodily injury includes resulting death. I. The bodily injury must arise out of and in the of the workers compensation law. course of the injured employee's employment If we make any payments in excess of the benefits by you . regularly provided by the workers compensation 2. The employment must be necessary or law on your behalf, you will reimburse us incidental to your work in a stale or territory listed in Item 3.A of the Information Page. promptly. 3. Bodily injury by accident must occur during the policy period. G. Recovery From Others 4. Bodily injury by disease must be caused or We have your rights, and the rights of persons entitled to the benefits of this insurance, to recover aggravated by the conditions of your employment. The employee's last day of last our payments from anyone liable for the injury . You will do everything necessary to protect those exposure to the conditions causing or aggravating such bodily injury by disease rights for us and to help us enforce them. must occur during the policy period. S. If you are sued, the original suit and any H. Statutory Provisions related legal actions for damages for bodily These statements apply where they are required by injury by accident or by disease must be law. brought in the United States of America its I. As between an injured worker and us, we have territories or possessions, or Canada. ' notice of the injury when you have notice . 2. Your default or the bankruptcy or insolvency of you or your estate will not relieve us of our B. We Will Pay We will pay all sums that you legally must pay as duties under this insurance after an injury damages because of bodily injury to your occurs. employees, provided the bodily injury is covered 3. We are directly and primarily liable to any by this Employers Liability Insurance. person entitled to the benefits payable by this insurance. Those persons may enforce our The damages we will pay, where recovery is duties; so may an agency authorized by law. permitted by law, include damages: Enforcement may be against us or against you and us. I. For which you are liable to a third party by 4 . Jurisdiction over you is jurisdiction over us reason of a claim or s.uit against you by that for purposes of the workers compensation third party to recover the damages claimed law. We are bound by decisions against you against such third party as a result of injury to your employee; under that law, subject to the provisions of this policy that are not in conflict with that 2. For care and loss of services; and law . Page 2 of 6 \\ C 99 00 ODD (Ed. 01-1S) 3. For consequential bodily injury to a spouse, child, parent, brother or sister of the injured 9. Bodily injury to any person in work subject to employee; provided that these damages are the the Federal Employers' Liability Act (45 direct consequence of bodily injury that arises U.S.C. Sections SI et seq.), any other federal out of and in the course of the injured laws obligating an employer to pay damages employee's employment by you; and to an employee due to bodily injury arising 4 . Because of bodily injury to your employee out of or in the course of employment, or any that arises out of and in the course of amendments to those laws; employment, claimed against you in a I 0. Bodily injury to a master or member of the capacity other than as employer. crew of any vessel, and does not cover punitive damages related to your duty or C. Exclusions obligation to provide transportation, wages, This insurance does not cover: maintenance, and cure under any applicable I. Liability assumed under a contract. This maritime law; exclusion does not apply to a warranty that 11. Fines or penalties imposed for violation of your work will be done in a workmanlike federal or state law; and manner; 12. Damages payable under the Migrant and 2 . Punitive or exemplary damages because of Seasonal Agricultural Worker Protection Act bodily injury to an employee employed in (29 U.S.C. Sections 1801 el seq.) and under violation of law; any other federal law awarding damages for 3. Bodily injury to an employee while employed violation of those laws or regulations issued in violation of law with your actual thereunder, and any amendments to those knowledge or the actual knowledge of any of laws. your executive officers; 4. Any obligation imposed by a workers D. We Will Defend compensation, occupational disease, We have the right and duty to defend, at our unemployment compensation, or disability expense, any claim, proceeding or suit against you benefits law, or any similar law; for damages payable by this insurance. We have 5. Bodily injury intentionally caused or the right to investigate and settle these claims, aggravated by you; proceedings and suits. 6. Bodily injury occurring outside the United States of America, its territories or We have no duty to defend a claim, proceeding or possessions, and Canada. This exclusion does suit that is not covered by this insurance. We have not apply to bodily injury to a citizen or no duty to defend or continue defending after we resident of the United States of America or have paid our applicable limit of liability under Canada who is temporarily outside these this insurance. countries; 7. Damages arising out of coercion, criticism, E. We Will Also Pay demotion, evaluation, reassignment, We will also pay these costs, in addition to other discipline, defamation, harassment, amounts payable under this insurance, as part of humiliation, discrimination against or any claim, proceeding, or suit we defend: termination of any employee, or any personnel I. Reasonable expenses incurred at our request practices, policies, acts or omissions; but not loss of earnings; 8. Bodily injury to any person in work subject to 2. Premiums for bonds to release attachments the Longshore and Harbor Workers' and for appeal bonds in bond amounts up to Compensation Act (33 U.S .C. Sections 901 et the limit our liability under this insurance; seq.), the Nonappropriated Fund 3. Litigation costs taxed against you; Instrumentalities Act (5 U.S.C. Sections 8171 4. Interest on a judgment as required by law until et seq.), the Outer Continental Shelf Lands we offer the amount due under this insurance; Act (43 U.S.C. Sections 1331 et seq.), the and Defense Base Act (42 U.S.C. Sections !651- 5. Expenses we incur. \654), the Federal Mine Safety and Health Act (30 U.S.C. Sections 801 et seq. and 901- 944), any other federal workers or workmen's compensation law or other federal occupational disease law, or any amendments to these laws; Page 3 of6 \\ C 99 00 00D (Ed. 01-15) F. Other Insurance determine your liability. The bankruptcy or We will not pay more than our share of damages insolvency of you or your estate will not relieve us and costs covered by this insurance and other of our obligations under this Part. insurance or self-insurance. Subject to any limits of insurance or self-insurance. Subject to any PART THREE limits of liability that apply, all shares will be OTHER STATES INSURANCE equal until the loss is paid. If any insurance or self-insurance is exhausted, the shares of all A. How This Insurance Applies remaining insurance and self-insurance will be I. This other states insurance applies only if one equal until the loss is paid. or more states are shown in Item J .C. of the Information Page. G. Limits of Liability 2. If you begin work in any one of those states Our liability to pay for damages is limited. Our after the effective date of this policy and are limits of liability are shown in Item 3.B of the not insured or are not self-insured for such Information Page. They apply as explained below. work, all provisions of the policy will apply as I. Bodily Injury by Accident. The limit shown though that state were listed in Item 3.A of the for "bodily injury by accident-each accident is Information Page. the most we will pay for all damages covered 3. We will reimburse you for the benefits by this insurance because of bodily injury to required by the workers compensation law of one or more employees in any one accident. that state if we are not permitted to pay the A disease is not bodily injury by accident benefits directly to persons entitled to them. unless it results directly from bodily injury by 4. If you have work on the effective date of this accident. policy in any state not listed in Item 3.A. of 2 . Bodily Injury by Disease. The limit shown the Information Page, coverage will not be for "bodily injury by disease-policy limit" is afforded for that state unless we are notified the most we will pay for all damages covered within thirty days . by this insurance and arising out of bodily injury by disease, regardless of the number of B. Notice employees who sustain bodily injury by Tell us at once if you begin work in any state listed disease. The limit shown for "bodily injury in Item 3.C. of the Information Page. by disease-each employee" is the most we will pay for all damages because of bodily injury by disease to any one employee. PART FOUR Bodily Injury by disease does not include YOUR DUTIES IF INJURY OCCURS disease that results directly from a bodily injury by accident. Tell us at once if injury occurs that may be covered by 3. We will not pay any claims for damages after this policy. Your other duties are listed here. we have paid the applicable limit of our I. Provide for immediate medical and other liability under this insurance. services required by the workers compensation law. H. Recovery From Others 2 . Give us or our agent the names and addresses We have your rights to recover our payment from of the injured persons and of witnesses, and anyone liable for an injury covered by this other information we may need . insurance. You will do everything necessary to 3. Promptly give us all notices, demands and protect those rights for us and to help us enforce legal papers related to the injury, claim, them. proceeding or suit. 4. Cooperate with us and assist us, as we may I. Actions Against Us request, in the investigation, settlement or There will be no right of action against us under defense of any claim, proceeding or suit. this insurance unless : 5. Do nothing after an injury occurs that would 1. You have complied with all the terms of this interfere with our right to recover from others . policy; and 6. Do not voluntarily make payments, assume 2 . The amount you owe has been determined obligations or incur expenses, except at your with our consent or by actual trial and final own cost. judgment. This insurance does not give anyone the right to add us as a defendant in an action against you to Page 4 of 6 \\'C 99 00 00D (Ed. 01-15) PART FIVE E. Final Premium PREMIUM The premium shown on the lnfonnation Page, schedules, and endorsements is an estimate. The final premium will be determined after this policy A. Our Manuals ends by using the actual, not the estimated, All premiums for this policy will be determined by premium basis and the proper clas_sifications and our manuals of rules, rates, rating plans and rates that lawfully apply to the business and work classifications. We may change our manuals and covered by this policy. If the final premium is apply the changes to this policy if authorized by more than the premium you paid to us, you must law or a governmental agency regulating thi s pay us the balance. If it is less, we will refund the insurance. balance to you. The final premium will not be less than the highest minimum premium for the B. Classifications classifications covered by this policy. Item 4 of the Infonnation Page shows the rate and premium basis for certain business or work If this policy is cancelled, final premium will be classifications. These classifications were determined in the following way unless our assigned based on an estimate of the exposures manuals provide otherwise: you would have during the policy period . If your I. If we cancel, for reasons other than non- actual exposures are not properly described by payment of premium and/or non-reporting of those classifications, we will assign proper payroll, final premium will be calculated pro classifications, rates and premium basis by rata based on the time this policy was in force. endorsement to this policy. Final premium will not be less than the pro rata share of the minimum premium. C. Remuneration 2. If we cancel the policy for non-payment of Premium for each work classification is pre~ium and/or non-reporting of payroll, final determined by multiplying a rate times a premium premium may be more than pro rata; it will be basis. Remuneration is the most common based on the time the policy was in force, and premium basis. This premium basis includes may be increased by our short-rate payroll and all other remuneration paid or payable cancellation table and procedure. Final during the policy period for the services of: premium will not be less than the pro rata I. all your officers and employees engaged in share of the minimum premium. work covered by this policy; and 3. If you cancel, final premium may be more 2. all other persons engaged in work that could than pro rata; it will be based on the time this make us liable under part One (Workers policy was in force, and increased by our Compensation Insurance) of this policy. If short-rate cancellation table and procedure. you do not have payroll records for these Final premium will not be less than the persons, the contract price for their services minimum premium. and materials may be used as the premium basis. This paragraph 2 will not apply if you F. Records give us proof that the employers of these You will keep records of infonnation needed to persons lawfully secured their workers' compute premium. You will provide us with compensation obligations. copies of those records when we ask for them . D. Premium Payments G. Audit You will pay all premium when due . You will pay You will let us examine and audit all your records the premium eyen if part or all of the workers that relate to this policy. These records include compensation law is not valid. ledgers, journals, registers, vouchers, contracts, tax reports, payroll and disbursement records, and programs for storing and retrieving data. We may conduct the audits during regular business hours during the policy period and within three years after the policy period ends. Information developed by audit will be used to determine final premium. Insurance rate service organizations have the same rights we have under this provision. Page 5 of 6 \\ C 99 00 DOD (E