Summary
In O'Connell v. Indian Neck General Store, 6 Conn. Workers' Comp. Rev. Op. 42, 530 CRD-3-86 (Oct. 6, 1988), this board held that a commissioner has jurisdiction to determine whether or not an insurance policy existed on the date of an employee's injury. Relying on Piscitello v. Boscarello, 113 Conn. 128 (1931), andRossini v. Morganti, 127 Conn. 706 (1940), we distinguished among the interpretation of an insurance contract, the determination of whether there were "breach of warranties, coverage or misrepresentation by the insured" defenses available to the insurer, and the determination of the existence of an insurance contract.
Summary of this case from BRUCE v. BERT MILLER ASSOCIATESOpinion
CASE NO. 530 CRD-3-86
OCTOBER 6, 1988
The claimant was represented by Barry J. Waters, Esq., Murtha, Cullina, Richter and Pinney.
The respondent-employer was represented by Karen Fox Tross, Esq. and Maureen Duggan Regula, Esq., Jacobs, Grudberg, Belt Dow, P.C.
The respondent-insured was represented by Peter Schwartz, Esq. and Louis N. George, Esq., Gordon, Muir Foley.
The Second Injury Fund was represented by Robert Murphy, Esq. and Robin Wilson, Esq., Assistant Attorneys General.
This Petition for Review from the October 29, 1986 Finding and Award of the Commissioner for the Third District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and A. Thomas White, Jr.
OPINION
No dispute here exists as to compensability. Claimant, who was sixteen years old at the time, had her right arm amputated at the elbow due to a work injury in the respondent employer's premises June 22, 1985. The matter at issue is between that employer, Indian Neck General Store, and the respondent insurer, Massachusetts Bay Insurance Company. The insurer had issued a workers' compensation policy to the employer which stated on its face that the policy period was "from June 25, 1984 to June 25, 1985 12:01 A.M. Standard Time". On May 30, 1985 there was received in the office of the Honorable A. Paul Berte, First District Commissioner, a notice of cancellation of that policy, such cancellation to be effective "as to accidents occurring after 12:01 of the 10th day of June, 1985".
The Third District Commissioner held October 29, 1986 that the appellant Massachusetts Bay Insurance Company was liable to pay the benefits due. She ruled that a compensation commissioner, as an administrative officer, had no jurisdiction to decide questions of insurance contract interpretations. She cited Sec. 31-343, C.G.S. and its conclusive presumption of coverage of the entire liability as a further basis for the ruling.
Sec. 31-343, C.G.S. provides: "As between any such injured employee or his dependent and the insurer, every such contract of insurance shall be conclusively presumed to cover the entire liability of the insured, and no question as to breach of warranty, coverage or misrepresentation by the insured shall be raised by the insurer in any proceeding before the compensation commissioner or on appeal therefrom."
The insurer has appealed, relying on Sec. 31-348, C.G.S. and its provisions for recording insurance policies as well as cancellation of such policies. We agree that the Commissioner did have Sec. 31-348 jurisdiction to determine whether or not there existed an insurance policy on June 22, 1985, the date of this employee's injury. The question for decision by the trial Commissioner was not whether there were "breach of warranties, coverage or misrepresentation by the insured" defenses available to the insurer respondent in defending against liability under the insurance contract. Rather, the issue for determination was the very existence of such contract. The Commissioner was not called upon to interpret the contract. She had to decide under Sec. 31-348 if there was a contract.
Sec. 31-348, C.G.S. provides: "Every insurance company writing compensation insurance shall report in writing to the board of commissioners, in accordance with rules by them prescribed, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within one week from the date of the policy. The cancellation of any policy so written and reported shall not become effective until one week after notice of such cancellation has been filed with the commissioner or commissioners with whom such report is filed. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollars for each offense."
As early as 1931 our Supreme Court approved a Workers' Compensation Commissioner's power to determine the existence or non-existence of such a contract, Piscitello v. Boscarello, 113 Conn. 128 (1931). In that case the Commissioner had issued an award against the insurer because no notice of a policy cancellation had been received by the Commissioner prior to the date of injury. The court affirmed the award and the Commissioner's jurisdiction to rule whether or not there was an insurance policy in effect. Nine years later, the court considered the principle so well established that it only released a short per curiam opinion in a similar case, Rossini v. Morganti, 127 Conn. 706 (1940). The court referred to Chief Justice Maltbie's Piscitello precedent:
"We pointed out that workmen's compensation is a peculiar type of insurance, and that to every policy each employee of the insured is in a very real sense a party; we said that the purpose of the notice was to make an authentic record so that any employee or prospective employee might ascertain whether the employer is insured, and, if so, in what company, and that the insurer is estopped to deny the truth of the formal record, whether or not the particular employee whose rights are in question examined the files where such records are kept; and we held that, as the record stated that the policy was in effect, the insurer could not deny that this was so."
Rossini v. Morganti, supra, at 708.
The law interpreted in Piscitello and Rossini was exactly the same statute now numbered Sec. 31-348.
In the instant matter, the May 30, 1985 notice of cancellation was in the evidence before the Commissioner. The facts there stated were undisputed. No purpose would be served by a remand for further proceedings. The award against the Massachusetts Bay Insurance Company is therefore vacated.
The appeal of the respondent insurer is sustained and the decision of the trial Commissioner is reversed.
Commissioners Robin Waller and A. Thomas White, Jr. concur.