-: SJC-13686.
Massachusetts Insurers Insolvency Fund
versus Workers' Compensation Trust Fund.
-: Okay, Attorney Mullen, whenever you're ready.
-: Morning, Chief Justice Budd, Associate Justices.
May it please the court, Kurt Mullen
on behalf of the Massachusetts Insurers Insolvency Fund.
The legislature created the Insolvency Fund
to pay covered claims
when an insurer, covered by Chapter 175D,
its Enabling Act, is declared to be insolvent.
So when an insurer is declared to be insolvent,
the fund steps into the shoes
and pays claims that arise out of
or are within the coverage of an insurance policy.
The claim that we're here before you today
involve cost of living adjustments
that are required to be paid by Section 34B
of the Workers' Compensation Act.
That requires insurers to pay COLA
to certain categories of claimants,
and that is what the Insolvency Fund does.
It doesn't do that because it's an insurer
as defined under Chapter 152.
It does that because under its own Enabling Act,
Chapter 175D, Section 5(1)B says that the Insolvency Fund
is deemed the insurer
in respect to its obligations on the covered claims,
and to that extent has all the insolvent insurer's rights,
duties, and obligations.
So here we have the Insolvency Fund paying COLA.
Now, Section 34B requires COLA to be paid
regardless of the date of injury,
but for certain dates of injury,
it also gives insurers a right,
and that is to receive reimbursement
from the Workers' Compensation Trust Fund.
So, because the fund is deemed the insurer,
the Insolvency Fund is deemed the insurer
with the obligation to pay,
it also has the right to receive reimbursement.
The trust fund disagrees with that,
and so we're here before the court
on stipulated facts on two issues.
And the Insolvency Fund is asking first
that the court determine
that the Insolvency Fund is deemed the insurer,
not just with the duty and obligation to pay COLA claims,
but also with the right, where the Statute 34B permits,
to receive reimbursement. -: Can I ask you a question
about the reimbursement of COLA piece?
This is a test case, and there's a universe
of, I forget how many other people involved, 80, 90.
I forget. Something like that.
Are those 89 or 90 people, whatever the number is,
is that the entire universe of claimants
to which this issue applies?
-: It's the entire universe
that existed when we filed the claim, Your Honor,
and the way that COLA reads is...
-: [Justice Wolohojian] Is it a diminishing number?
-: Diminishing number, and I'll tell you why.
It's because Section 34B, Subsection C
requires insurers to pay COLA
where an employee is completely and totally incapacitated
as a result of the injury,
or to the dependents where the employee dies
as a result of the workplace injury.
The reimbursement provision only applies
to a subset of those cases,
and it's either injuries that occurred
before October 1, 1986,
and then the legislature Subsection C says,
"and to the extent that there's an increase
in the average weekly wage above 5%."
Justice Kafker: See, that part is not...
That part can keep getting bigger, right?
-: It can't.
Justice Kafker: Why not? Explain that to me.
-: Because in 1991, the legislature overhauled Chapter 152,
and among the provisions they added to the COLA provision
in Subsection A of 34B
is to say that the average weekly wage
will never increase more than 5%.
So the universe of claims here
relates to injuries that effectively...
-: [Justice Wolohojian] Before October 1986?
-: It's actually, if you look at the increase above 5%,
it's December 23, 1991,
but this is when the Insolvency Fund
initially made its claim,
it was, you know, 86 or so claimants.
There have been insolvencies
that have increased and decreased that number,
but the long-term trend,
because unfortunately no one lives forever,
is that these claims have diminished over time.
I cite in our brief,
as of the time stipulated facts ended,
we were down in the forties.
The Insolvency Fund has continued to submit claims,
and that number, will over time, decline.
-: Didn't mean to cut you off. -: No.
So I just wanna thank you very much.
I just have one more question.
So that means that at the current time
for the post December 31 or 23, whatever the date was,
1991 claims, the insurers remain obligated to pay COLA,
but they do not get reimbursed for the COLA.
-: That's correct. -: Okay. So this...
I got it. Thank you.
-: So your opponent's gonna get up
and sort of talk about the fact that you're not putting,
you're not continuing
to support the Workers' Comp Trust Fund,
but I'm confused by that,
and I'm gonna ask him the same questions,
but the Workers' Comp Trust Fund
is paid entirely by employers, right?
The insurers are just sort of conduits of money, right?
They don't...
Because they're different parts
of the Workers' Comp Trust Fund, right?
Like the Workers' Comp Trust Fund,
do those pay for the employers
who didn't buy insurance too?
Does that...
-: The trust fund covers a variety of claims.
We're here before you on COLA claims,
but also there's Section 37 claims, a second injury claim.
Justice Kafker: I'm just trying to...
-: If an employer didn't get insurance, as Your Honor stated.
-: I'm trying to make sure I understand.
Their argument is somehow
that you shouldn't get paid
even though you're paying the benefits
because you're not contributing to the system,
but it's not your financial obligation to contribute, right?
It all is paid for by employers and not insurers, right?
-: That's exactly right.
The way that the trust fund is,
for lack of a better word, funded
is that an assessment base is, you know, determined.
There's an assessment rate.
that is collected from employers
who either purchase workers' compensation insurance,
or are self-insured, or belong to a self-insurance group.
The employers are the ones
who pay the money for the trust fund.
-: [Justice Wendlandt] The self-insured employers
contribute to the fund? -: No.
-: They can unless they opt out. So there's a-
-: Yeah. Well, yeah. -: Right.
-: [Justice Wendlandt] Right. I'm sorry.
I should have been more specific.
You know this area, obviously, more than I do.
So the self-insurers, employers who opt out
don't contribute to the fund.
Attorney Mullen: That's right. And so-
-: The same is true with the groups.
-: That's right. -: Okay. Who opt out.
Attorney Mullen: Who opt out. Right.
-: And then consequently they don't get to get reimbursed,
'cause they don't contribute and they can't get reimbursed.
But here, and by the way,
this plaintiff is still paying into the...
The insurance company currently covering this employer.
This employer still exists, right?
Attorney Mullen: That's correct.
-: And this employer has a new insurance company
that's paying into this fund, correct?
Attorney Mullen: Presumably that's the case, yes,
because that's what they have to do.
-: So there's not this pay problem.
I'm mystified by this. So...
-: You're not the only one, respectfully, Your Honor,
and that's the issue that we've come into
is that the trust fund, the way it is structured
is that it is funded by current employers
who participated in the system,
and if you purchase workers' compensation insurance,
you have to participate in the system.
And insurers, as you pointed out, collect those assessments
and they submit them to the trust fund.
My client doesn't issue insurance policies
because it comes into play
when an insurer has been deemed insolvent.
So it doesn't contribute assessments or collect them,
but because it doesn't have insureds
from whom to collect them.
So the way that the trust fund system is set up
is that it's insurers who pay for it
or self-insurers or self-insurance groups
who participate in the system.
Now, the legislature has put into Section 65,
and this repeats itself in the COLA statute 34B,
and the second injury fund statute Section 37,
that there are certain categories of people
who are self-insurers, self-insurance groups,
or municipalities.
They can opt out of the trust fund system.
They can think it's not a good deal for them
for whatever reason.
-: And they're opting out of the workers' comp system
in many ways, right?
They're self-insuring and paying their...
They don't have an insurance company, right?
-: They don't have an insurance company,
but they still have obligations under Chapter 152.
-: Oh, I know they have to pay their employees benefits,
but they're sort of doing it on their own
without the insurance company's involvement, right?
-: That's correct. They're self-insured.
I understand The Department of Industrial Accidents
has to certify them as such.
They may have to put up collateral,
but they're not getting an insurance policy
for their primary obligations here.
-: I mean, the 1991 amendments were dealing with a crisis.
I remember it.
So, and the DIA seems to be concerned
about the integrity of the Workers' Comp Trust Fund,
and they don't like money going out of it
that isn't going back in it, but this isn't that, right?
-: I don't see it that...
And I agree with you, Your Honor.
The way that the trust fund is structured
is that employers pay in,
there are certain types of claims
that the trust fund has to pay out,
and COLA for certain dates of injuries are one of them,
and there are certain other categories as well,
but the way that Section 65
of the Workers' Compensation Act is structured
is that employers fund that.
That's the system.
And that's on an ongoing basis.
-: And for the deadbeat employers,
the other employers have to pick up for them,
not the insurance companies, right?
It's the other employers that step in.
Attorney Mullen: That's correct.
-: 'Cause again, a lot of employers don't pay
or manipulate the workers' compensation system.
That's the purpose of the Workers' Comp Trust Fund, right?
-: That is one of the purposes.
And then the Workers' Compensation Trust Fund
can go and chase those recalcitrant employers and get money.
But it's employers who fund the trust fund,
it's self-sustaining,
and because of that,
the Insolvency Fund has no obligation to...
It has the obligation to pay COLA,
but it doesn't have the obligation to pay assessments.
And what the reviewing board has put in here
is this extra step
that you have to, to get money out of the trust fund,
you also have to be collecting trust fund assessments
from insureds and submitting them to the trust fund,
but that's not the way the statute is written.
There's no obligation that you have to do that.
-: You're making it more difficult
for them to administer the fund, right?
'Cause they turn to the insurance companies
'cause there's a limited number of insurance companies
versus thousands and thousands of employers, right?
So if you're not cooperating,
the system doesn't work as smoothly,
or you're not in the system, right?
I take it that's the reasoning.
-: It's fair to say you're not in the system,
and the trust fund's position is you're not in the system
so you can't get money out of it, but we are paying,
-: Did you address their first statutory argument
that it only covers the insurance policies
and it doesn't cover the statutory requirements of COLA,
'cause that's not in the insurance policy itself?
Do you want to address that?
-: I do.
It's a little bit of a confusing argument to me, Your Honor,
because we came on stipulated facts,
we didn't submit policies,
but this is clearly something
that Insolvency Fund's obligation is to pay covered claims
which arise out of
and are within the coverage of an insurance policy.
So whether it's within the coverage of an insurance policy
or it arises out of coverage...
And workers' compensation is statutory.
It's a statutory creature.
There are many things that are different
about workers' compensation claims as a whole
than are other property and casualty lines.
The Insolvency Fund has that obligation to pay it,
because it's deemed the insurer under its own Enabling Act.
And this, you know, the court doesn't need to defer
to the reviewing board
because it involves the interpretation of Chapter 175D
and the statutory language is not ambiguous,
but this isn't something
that the reviewing board got really hung up on.
They assumed that the Insolvency Fund was deemed the insurer
for purposes of paying this,
and they had this extra, you know,
this extra statutory requirement
that you have to continue to write policies,
which we disagree with,
because the alpha and the omega of who is exempted
or who is barred from recovering from the trust fund
are self-insurers, self-insurance groups,
and municipalities that opt out of the system.
And it's clear the legislative intent there
is that if you are required to put into the trust fund
and you opt out, then you can't come back later,
you can't get your own recovery here.
The legislature was very clear about that,
and that's not, of course, the case that we have here.
The Insolvency Fund is paying COLA claims.
We are administering them.
It's a diminishing pool of claimants
for whom we are required to seek,
or we're all entitled to seek reimbursement,
and that's where we are.
And when you look at the structure,
and certainly the intent of the Workers' Compensation Act
is to have that funded by employers.
And if you look at Chapter 175D,
which is the Insolvency Fund's Enabling Act,
it's a limited safety net.
It provides rights and obligations.
We're here. We issue other...
You know, we've listed out other ones in our brief
of the protections that the legislature has put in,
but one of the protections
is that the Insolvency Fund has the right to recover money,
and that ultimately,
because the entire insurance-buying public
funds the Insolvency Fund
that protects the insurance-buying public.
And so all we're asking for here in this case
is the reimbursement to which the legislature provided
that insurers or those who are deemed the insurers
are required to provide, nothing more, nothing less.
And we ask that you reverse the reviewing board's decision.
-: Okay. Thank you. -: Thank you.
-: Okay. Attorney Jaikumar, he's teed it all up for you.
-: I'm sorry, Your Honor? -: He's teed it up for you.
You get your chance to tell us why he's wrong.
-: Thank you, Madam Justice, may it please the court,
Arjun Jaikumar, Assistant Attorney General
on behalf of the Department of Industrial Accidents
and the Workers' Compensation Trust Fund.
This court should affirm the reviewing board
for two reasons.
First, the Insolvency Fund is not an insurer,
and only insurers, as defined by Chapter 152...
-: I mean, it's clear it steps into the role of the insurer.
The language, I don't know how much...
How much clearer can that language be?
It just says that they step into that position, so I just...
Explain to me
how you draw this contractual versus statutory distinction.
-: [Attorney Jaikumar] Certainly, Your Honor.
-: 'Cause they're the ones paying this.
They've stepped into the defunct insurer.
That's why they're paying the COLA benefits.
-: Well, Your Honor, I would note
that Chapter 152, Sections 34B and 65
don't entitle a payor to reimbursement,
they entitle an insurer to reimbursement.
To get to your question, Your Honor, that...
Justice Kafker: Then they step into the position
of the insurer.
-: Right.
In fact, the statute says they're deemed the insurer.
-: And, Justice Wendlandt, Justice Kafker,
I would note that Chapter 175D
has its own definition of the term "insurer,"
that MIIF also concededly does not meet,
but it is also distinct
from General Laws Chapter 152's definition.
The way you might look at it
is to say Chapter 152 defines an insurer as X.
-: But it doesn't say MIIF is deemed the insurer
under Chapter 175D.
It says, "MIIF is deemed the insurer
to the extent of its obligations on the covered claims
and shall have all rights, duties, and obligations
of the insolvent insurer to such extent."
So it's pretty specific that it's not,
"We are in an insurer as that term is defined in 175D."
It's, "We are an insurer to the extent
of the insolvent insurer's obligations and rights."
-: I would dispute that, Justice Wendlandt,
and I would point you to the Modernization Act's amendments
to this particular part of Chapter 175D.
So the statute now reads
that MIIF shall have all rights and duties
and policy obligations of the insolvent member insurer,
which a member insurer is a specific term
defined under Chapter 175D,
to the extent of its obligation on the covered claims.
So I would actually argue,
and I think it's clear
from the legislature's clarifications recently,
that yes, it is,
the relevant definition of the term "insurer,"
the relevant understanding of that word
is derived out of the definitions in Chapter 175D.
And Justice Kafker, I would...
-: Wait, so you're saying a subsequent amendment,
that we should be using a subsequent amendment
to construe what this statute means?
-: [Attorney Jaikumar] I don't think that's necessary,
Your Honor, because even under the-
-: I'm sorry. I misunderstood your argument.
-: [Attorney Jaikumar] Oh no. I don't think you...
-: You said there was an amendment to the statutory language.
-: Which I think clarifies what was already true,
and that is set forth by the...
General Laws Chapter 175D, Section 1 states that,
"As used in this chapter, the following terms
will have the following understanding,"
the usual language that the legislature uses.
And it gives a definition of the term "insurer,"
that MIIF does not meet,
but then later in Section 5 says,
"MIIF shall be deemed the insurer,"
which is a term defined under General Laws Chapter 175D,
and where it is stated very clearly in Section 1
that, for the purposes of this chapter,
that shall be the understanding of the term,
"and shall have the rights, duties, and policy obligations,"
it now says, "of the insolvent insurer to such extent."
Justice Kafker, I wanna return quickly to your point,
because...
Justice Kafker: Don't leave Justice Wendlandt
until you've answered her question.
Are you okay?
-: [Justice Wendlandt] I think I understand
the argument you've made.
-: Thank you, Justice Wendlandt.
Justice Kafker, I think that, as this court knows,
this is not the first case in which differing definitions
of an identical term in different statutes,
including the Workers' Comp Statute
have come before this court,
and this court has been asked to sort them out.
I think your opinion in Camargo's case
might be instructive for this court,
and that also involved the workers' comp statutes
and the definitions therein,
in that case, the term "employee."
And I would direct the court to Camargo's case
for the proposition
that, absent a more specific terminology
from the legislature,
stating that one definition in one statute
is to override a conflicting definition in another,
that it has to be the language of...
-: We can go back to Camargo, but let me take you...
'Cause Camargo is dealing with employee
versus independent contractor, right,
which is incredibly convoluted.
But this, tell me why this makes any sense
not to interpret this the way he says, because I don't...
I mean, you're gonna argue,
I assume, the next case too, but...
-: [Attorney Jaikumar] I am not, Your Honor.
That would be my colleague Mr. (indistinct)
-: So I don't...
They're paying the benefits.
They're paying the COLA benefits
as if they were the insurer,
'cause they're stepping into the shoes.
Why would it make sense to cut them off?
I just, I mean, if it's a pure statutory argument,
you know, we'll go back
and see if you're right versus he is right,
but is there any reason why the legislature would not?
'Cause I don't believe the DIA
adopted your statutory interpretation of the second part.
They do the opposite.
They say they do step in the shoes,
but they have this argument
that he's gonna do in the next case,
which is if you're an insurer and you're not cooperating,
you're outta luck,
and we're not gonna give these people better treatment
than the insurers who are not cooperating.
So they don't adopt your statutory interpretation.
They do the opposite,
but then they have this sort of policy argument
about you're not cooperating.
But again, I don't see what you're not doing
that you're supposed to do for the Workers' Comp Trust Fund.
What are they not doing?
I just don't get it
in terms of keeping the financial integrity
of the Workers' Comp Trust Fund,
'cause I understand how important that is,
and I understand how dicey that is,
and I understand why the DIA is super concerned about that.
It pays for the DIA.
It pays for the employers
who don't pay their insurance comp rates,
but the employers pay for it all, so I don't get it.
Tell me why, from a logical perspective,
this makes any sense.
-: Thank you, Your Honor.
I think there's a lot embedded to that,
so I just wanna make sure that I understand
and that I break apart your question a little bit.
-: Go ahead. -: First, I would dispute-
Justice Kafker: I put too many thoughts in.
-: I would dispute that the DIA is taking the opinion
that MIIF is an insurer under the Workers' Comp Statute,
which-
-: Doesn't the Koziol decision for the board say
that you step into the shoes of the insurer?
We agree with that, or am I misreading that?
-: I would say that the reviewing board's decision
and the administrative judge's decision previously,
which was affirmed by the reviewing board, they both state
that under the plain language of the statute,
MIIF is not an insurer, and in fact-
-: An insurer, because of course they're not an insurer,
they're the fund,
but they step into the shoes of the insurer.
-: So for this purpose, Justice Kafker,
I would say that I think that my brother, respectfully,
misstates the reviewing board's decision a little bit.
I would say the Justice Koziol...
The reviewing board's decision states
that even if, even assuming arguendo that he were correct,
it would make no difference because of the second argument
that you'll be hearing later from, and I'm happy to address,
but just to make that clear, yes.
The DIA's view in this case is that, no,
under the plain language of Chapter 152, Section 1,
the Insolvency Fund is not an insurer.
The Insolvency Fund has raised the question
of whether it is deemed an insurer,
and whether, you know, that language in Chapter 175D
can be imported into Chapter 152.
And I think the answer is that even if it were,
it would have made no difference to the reviewing board.
-: Right, because they say
because insurers don't get to collect.
-: [Attorney Jaikumar] Right.
-: But so let's...
Again, my question goes,
why would it make sense to hold this MIIF fund,
or whatever it's called,
they're responsible for paying the COLAs,
but they can't get money out of the fund
because they're not acting as a conduit.
It doesn't have any effect
on the Workers' Compensation Trust Fund, does it?
-: So that, I would disagree with that, Your Honor,
and here is why.
So first of all, I think actually the parties are united
on the idea that tying the right to reimbursement
to an employer's payment of these vestments,
irrespective of what the insurer's doing, is a poor idea.
And that is, to your point, Justice Kafker,
really goes to the administrability.
With respect to COLA, we're talking about businesses
that were in business 40 years ago for the bulk.
I mean, over the course of 30 years,
80% of employers in the Commonwealth go out of business
or change their names or are taken over by other companies,
so it would be a nightmare.
To be honest, it would be,
for purpose of COLA reimbursement,
probably greatly beneficial for the trust fund
because our..
-: A nightmare to manage 89 claims,
you know, that are shrinking over time?
I mean, that's a nightmare?
And that they don't change year to year.
These people got injured in 1966 or something.
I just don't get
why that's such an administrative difficulty.
-: Your Honor, I think that the challenges
of tracking what has happened to an employer,
whether they're still paying in the funds,
whether they're still operating in the Commonwealth,
even in a small number of cases,
could be extremely difficult,
but it would be, for the trust funds,
for what the trust fund pays out,
I think it would probably be a net gain,
but I think it would be very, very difficult for the system.
-: Can I ask you a couple of questions
that I'm hoping will be just factual?
The employee here, Burgess,
before American Mutual became insolvent,
American Mutual was paying out the COLA payments to him.
Is that correct?
-: [Attorney Jaikumar] That is my understanding, yes.
-: Okay, and the trust fund was reimbursing them.
Is that also correct?
-: [Attorney Jaikumar] That is also my understanding.
-: And to whom were those reimbursements made?
-: The reimbursements are made to the insurer,
and then I believe (indistinct)
-: To American Mutual.
And then American Mutual becomes insolvent. Is that correct?
-: [Attorney Jaikumar] Yes, Your Honor.
-: And MIIF has the obligation to cover,
well, has statutory obligation
to sort of step into the insolvent insurer's shoes, correct?
-: To the extent of its obligations on the covered claims,
which are established by the relevant insurance policies.
-: Right, and so I take it that by virtue of the insolvency,
the trust fund's position
is that it no longer needs to reimburse COLA,
even though the insurer, no, MIIF,
is required to continue to pay out
on American Mutual's COLA obligation?
-: That is correct, Your Honor. -: Okay.
So, do we have any authority for the notion that MIIF,
because this is all in part statutory,
but in part contractual under the policy...
-: [Attorney Jaikumar] Absolutely, Your Honor.
-: I take it that your position would not be
that MIIF gets to pick and choose
which obligations and rights it has under the policy itself.
Like it couldn't- -: That's correct, Your Honor.
-: Right?
Where does its obligation
for paying the COLA payments come from?
Partly from the policy, I presume,
and partly from any place else?
-: Yes, your honor. The policy incorporates...
The legislature can establish
what an insurer and an insured may agree to in a contract.
It may require that an insurer provides certain benefits,
and that...
Without a policy there is no obligation.
-: Right, so we've said a million times
that basically you get what you contracted for
when you entered into the insurance policy, right?
And at the time these insurance policies were entered into,
because, right, the premium for that policy is set
based on what the insurer reasonably expects,
and the insured reasonably expects
will be covered by the policy.
At that time, part of that reasonable expectation
was reimbursement from the trust fund
when it was entered into by American Mutual.
Am I missing something in there?
-: No, Your Honor. -: Okay.
So how does that change simply by virtue of the fact
that the insurer then becomes insolvent?
-: I think that that goes
to why the rights, duties, and obligation policy obligations
of the insolvent insurer language
is in the statute in the first place,
because MIIF is not the legal successor
to an insurance policy.
It doesn't assume directly, by contract,
those contractual rights or obligations or duties,
and so that's what Chapter 175D does.
-: If it stopped paying the COLA payments, what would happen?
-: If MIIF were to stop making COLA payments under the...
I think it is not required
to make COLA payments by the statute.
It is required to make COLA payments
by its own governing statute,
which imposes upon MIIF the obligations that are set forth
by the implied language of an insurance policy.
-: So if MIIF stopped paying Mr. Burgess,
Mr. Burgess would have a claim.
-: [Attorney Jaikumar] Yes.
-: Contractual and statutory against MIIF.
-: I think it would be a contractual claim,
but it would be...
-: Well, no, because there's no contract
between him and MIIF.
-: That's true. -: Right?
So it would be both contractual and statutory.
-: Okay, Your Honor.
So, yes, I think that's correct,
but I don't know if there's a follow-up question to that,
but Justice Kafker, I do wanna get back
to one of the questions that you raised before,
which is why it matters.
And part of that is because the assessment base
that the trust fund has, the assessment rate that it sets,
where insurers go back to employers
and they say this is what you're gonna pay,
that is set according to what is reported,
the loss experience that is reported to the trust fund,
and so if there are loss experiences
that are not being reported
because a separate entity that is not an insurer,
that is not bound by all the terms and conditions
of Chapter 152 is not reporting loss experience,
that is itself a problem,
because then the assessment rate
that is being imposed upon employers is inaccurate.
They may have to do mid-year assessments that are...
Justice Kafker: But, again,
that's to determine the amount to put into the thing, right?
-: Correct.
-: The amount that's going out is consistent, right,
'cause we've got these same 89 people
year after year getting paid, right?
So the amount that you have to figure out going in
is based on the total amount of insurance sold,
and your percentage of that total amount
of workers' compensation insurance, right?
-: [Attorney Jaikumar] Well, Your Honor, yes,
but I would say, and I know that my time has expired, but...
Justice Kafker: And you and I are probably the only ones
interested in this part of this, but that's okay.
-: Well, actually... -: Yeah.
-: [Justice Wendlandt] Are you about to say something
you've already said?
-: No, Your Honor. -: Okay.
-: I was going to say that, gosh,
this case is not simply about COLA, in a sense,
because returning to the statutory argument,
if this court were to override the plain language
in General Laws Chapter 152, Sections 1, 34B, and 65,
and hold that MIFF is an insurer,
notwithstanding the statutory definition,
that goes well beyond COLA, and could open up MIFF
to seek second injury insurance reimbursements
under Chapter 37.
-: [Justice Wolohojian] So if we said they were insured
for these purposes, that would be okay?
-: I would disagree with that, Your Honor, (chuckles)
but I merely wanted to make the point
that, broadly speaking,
this is not simply about the 89 cases.
It is about assuming
that the legislature meant what it said
when it, you know, enacted the statutory definition
in Chapter 152,
and that could affect, you know,
if the floodgates are opened, it could affect other claims
for via reimbursement by MIIF.
It could affect what reinsurers
or excess insurers try to seek under the statute.
And so I would conclude by saying
that I think this starts and ends
with the plain definition of the term "insurer"
as far as the workers' comp statute goes.