The opinion of the court was delivered by: Lawrence E. Kahn Senior United States District Judge
Plaintiff Employers Insurance Company of Wausau ("Plaintiff") commenced the instant action against Defendant Crouse-Community Center, Inc.("Defendant") on December 15, 2005, alleging that Defendant failed to pay certain premiums owed pursuant to a Workers' Compensation Insurance Policy issued by Plaintiff to Defendant. Defendant asserted counter-claims of breach of fiduciary duty, breach of contract, and unjust enrichment arising out of the same insurance policy. By Decision and Order dated April 25, 2007, the Court dismissed Defendant's counterclaim alleging breach of fiduciary duty. Presently before the Court are: (1) Plaintiff's Motion for summary judgment (Dkt. No. 42); (2) Defendant's Motion for summary judgment (Dkt. No. 38); and (3) Plaintiff's Motion to exclude Defendant's expert (Dkt. No. 42).
Plaintiff issued a Workers' Compensation and Employers Liability Insurance policy to Defendant for the period from June 30, 1995 to June 30, 1996 (the "Policy"). Pursuant to the retrospective premium agreements and endorsements, the Policy premium was based, in part, upon payments made and reserves set for claims under the Policy.*fn1 In August 1995, one of Defendant's employees (the "claimant") was injured on the job. A workers' compensation claim was submitted on behalf of the claimant. Because of the possibility that the claimant suffered from a pre-existing injury, Plaintiff protectively applied for Second Injury Fund benefits concerning the claimant on November 28, 1995.*fn2 The application form listed the claimant's prior conditions as carpal tunnel surgery, obesity, and hypoglycemia. On March 6, 1996, Plaintiff submitted a second application form concerning the claimant. This form included pulmonary embolism and prior costochondritis as additional prior conditions.
In February 1998, Plaintiff attended a "pre-trial" conference concerning the claimant with a representative of the Special Funds Conservation Committee. Plaintiff was directed to have a consultant address whether there existed a prior permanent physical impairment.*fn3 Plaintiff was also directed to have a consultant address whether the claimant suffered a permanent disability caused by a prior permanent physical impairment together with the workplace accident that is materially and substantially greater than that which would have resulted from the workplace accident alone.*fn4
According to Plaintiff, it reviewed the medical records and, notwithstanding the claimant's prior injuries, was unable to conclude that the claimant suffered a prior permanent physical impairment within the meaning of § 15(8)(b).*fn5 On March 5, 1999, Plaintiff withdrew the application for Second Fund benefits.
Plaintiff contends that it withdrew the application on the grounds that there was insufficient medical evidence to establish a pre-existing permanent physical impairment within the meaning of N.Y. Workers' Compensation Law § 15(8). Defendant argues that Plaintiff failed to property investigate the claim, failed to keep its medical consultant fully informed of the claimant's conditions, and withdrew the application without justification. Defendant maintains that Plaintiff should have pursued Second Injury Fund benefits and that, if it had, it would have recovered Second Injury benefits, which would have had the effect of reducing premiums paid by Defendant.
In February 2005, Plaintiff issued to Defendant the Ninth Retrospective Premium and Dividend Adjustment for the Policy. In January 2006, Plaintiff issued to Defendant the Tenth Retrospective Premium and Dividend Adjustment for the Policy. Defendant has not paid any of the obligations resulting from these retrospective adjustments. This action, filed on December 15, 2005, seeks to recover for losses associated with and arising from Defendant's non-payment.
Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F ED. R. C IV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
b. Liability for Insurance Premiums
Plaintiff seeks to recover insurance premiums on the policies issued to Defendant. To establish a prima facie case for liability for payment of premiums, Plaintiff must show: (1) the issuance of a policy to the insured; and (2) the computation of the earned premium by means of an audit of the insured's books and records at the end of the policy period. Family Coatinfs, Inc. v. Michigan Mut. Ins. Co., 170 A.D.2d 816, 817 (3d Dept. 1991). If the insurer can establish a prima facie case, the burden shifts to the insured to come forward with evidence that it did not request or receive the benefit of the insurance coverage. Id.
Here, the undisputed evidence demonstrates that Plaintiff issued a workers' compensation policy to Defendant and that Defendant received the benefit of the insurance coverage. Further, Plaintiff has submitted a calculation of the premium by means of the requisite audit. Defendant has not raised a triable issue of fact concerning the calculation of the amount of premiums due. Accordingly, ...