Belanowitz v. Travelers Ins. Co.
Decision Date | 10 October 1940 |
Docket Number | Nos. 42, 43.,s. 42, 43. |
Citation | 15 A.2d 745,125 N.J.L. 301 |
Parties | BELANOWITZ v. TRAVELERS INS. CO. |
Court | New Jersey Supreme Court |
Syllabus by the Court.
1. A judgment of the Workmen's Compensation Bureau in a proceeding to which an insurance carrier is not a party and entered after a hearing at which the carrier is not afforded an opportunity to be heard, while res judicata as to the liability of the employer to pay compensation, is not res judicata as to the liability of the carrier under its policy of insurance.
2. Under R.S. 34:15-86, N.J.S.A. 34:15-86, which provides that after insolvency or bankruptcy of the employer the carrier shall be "directly" liable for payment of compensation, all proceedings subsequent to the bankruptcy of an employer which are designed to secure a judgment for which the insurance carrier will be sought to be held liable must be directly against the carrier.
3. Where, as here, there was an award for partial permanent disability as the result of industrial disease, which award fixed the time of disability at a date not within the coverage of the insurance carrier's policy, and which award was paid in full by the employer, and where, after the employer was adjudged bankrupt, a petition for increase of disability was filed nominally against the bankrupt employer, and after an ex parte hearing an award for increase was made, which award fixed the time of disability at a date within the coverage of the carrier's policy, such an award is not conclusive upon the insurance carrier in a subsequent proceeding in the Common Pleas Court to hold the carrier as in a case where the employer fails to make payment, the insurance company not having been made a party to any of the proceedings in the Bureau where the facts to establish its liability were found.
Appeal from Supreme Court.
Proceeding by John Belanowitz against the Travelers Insurance Company to recover the amount of compensation awarded petitioner by the Workmen's Compensation Bureau for total permanent disability. A judgment for petitioner, 17 N.J.Misc. 151, 6 A.2d 665, was reversed and set aside by the Supreme Court on certiorari, 123 N.J.L. 574, 10 A.2d 178, and petitioner appeals.
Judgment of Supreme Court affirmed.
David Roskein and Walter X. Trumbull, both of Newark, for defendant-appellant.
James J. Skeffington, of Newark, for prosecutor-respondent.
These appeals bring up a judgment of the Supreme Court entered on cross-writs of certiorari in a workman's compensation case. The Supreme Court reversed a judgment of the Essex County Court of Common Pleas awarding the appellant compensation for 100 per cent. of total permanent disability growing out of an occupational disease. The proceeding now under review was instituted under R.S. 34:15-82 et seq., N.J.S.A. 34:15-82 et seq., against the respondent insurance company and the dispute is as to whether or not the policy of insurance issued by respondent, which expired October 1st, 1933, covered the loss.
The facts appear to be that the appellant was employed by the A. Fishman Hat Co. and contracted the occupational disease of mercurial poisoning, or "hatters shakes." He filed a petition for compensation with the Bureau, although such petition is not contained in the record nor is its filing date stated. The matter came on for hearing on June 4th, 1934, before a deputy commissioner. It appears from the colloquy of counsel at the commencement of this hearing that the respondent here, Travelers Insurance Company, had had notice of the claim for compensation, had disclaimed liability under its policy and did not appear at or take part in the hearing. The opinion of the Supreme Court expresses the view that this proceeding in the Bureau was one by consent, but we think the record does not support this holding in view of the statement by counsel for the Hat Company that he could not enter into a consent judgment because of danger of prejudicing any claim the Hat Company might have against the Travelers Insurance Company. Many of the facts, however, were stipulated. Testimony was taken and an award made.
In his determination of facts and rule for judgment the deputy commissioner found that appellant had contracted mercury poisoning and was entitled to compensation for permanent disability to the extent of 25 per cent. of total. He further said:
The award, both for temporary disability and for partial permanent disability, was paid in full not by the Travelers Insurance Company but by the employer, A. Fishman Hat Co., and after it was paid in full, it seems to be agreed, that company was adjudged bankrupt.
More than four years later appellant filed a petition alleging that his disability had increased and seeking an increase in his compensation award. On January 17th, 1939, a deputy commissioner, other than the one who made the first award, made a determination that appellant was 100 per cent. totally and permanently disabled. This determination recites that the hearing was ex parte, there being no appearance on behalf of the A. Fishman Hat Co. The insurance company was not a party to this proceeding, nor was it given any notice of it or given notice that appellant would seek to enforce against it any award made. The deputy commissioner in his determination of facts and rule for judgment held:
And further: "On the basis of all the evidence adduced before me at this hearing, I find as a fact that the petitioner was employed by the respondent and contracted mercurial poisoning by reason of his exposure to a solution containing mercury,...
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