Burhans v. Cent. States Produce Corp., 28.

• Decision Date: 03 December 1945
• Docket Number: No. 28.,28.
• Parties: BURHANS v. CENTRAL STATES PRODUCE CORPORATION et al.
• Court: Michigan Supreme Court

313 Mich. 124

20 N.W.2d 835

BURHANS

v.CENTRAL STATES PRODUCE CORPORATION et al.

No. 28.

Supreme Court of Michigan.

Dec. 3, 1945

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Minnie M. Burhans, claimant, opposed by the Central States Produce Corporation, employer, and the State Accident Fund and Continental Casualty Company, insurance carriers. From an award of compensation against the State Accident Fund by Department of Labor and Industry, the State Accident Company appeals in the nature of certiorari.

Affirmed.

Before the Entire Bench.

Harry F. Briggs, of Lansing (Roy Andrus, of Lansing, of counsel), for State Accident Fund, defendant and appellant.

Mason, Stratton & Kent, of Kalamazoo, for Continental Casualty Co., defendant and appellee.

NORTH, Justice.

In this appeal from the department of labor and industry the sole question is which of the two defendant insurance companies is liable for payment of compensation awarded to plaintiff.

The State Accident Fund issued to plaintiff's employer its renewal compensation insurance policy, effective February 15, 1944; and its certificate of such coverage was filed with the department of labor and industry March 3, 1944. Notice of termination of this insurer's liability was filed with the department May 17, 1944.

The Continental Casualty Company issued its policy on this same risk, effective March 31, 1944; and filed its certificate of coverage with the department May 17, 1944.

On April 26, 1944, plaintiff, while in the employ of Central States Produce Corporation, suffered an accidental injury for which it is admitted she is entitled to compensation. Upon hearing before the deputy commissioner, the Continental Casualty Company was held liable. This holding on review by the commission was reversed and the State Accident Fund was held liable. It has appealed, leave having been granted.

In reaching its conclusion the commission held against appellant's contention that Act No. 245, Pub. Acts 1943, changed the rule laid down in Phillips v. County of Iron, 273 Mich. 157, 262 N.W. 656, and Zielke v. A. J. Marshall Co., 306 Mich. 474, 11 N.W.2d 209, regarding the liability of one of two insurance carriers each of whom had issued a policy purporting to cover the same risk at the time of a compensable injury. The cited cases, as well as other decisions of this Court, in effect hold that as between two insurance companies each of which had issued a policy purporting to cover the risk at the time of the accident, but only one of which companies had filed with the department its notice of acceptance of the risk, such company is the one held liable. So the question now presented is whether there is contained in Act No. 245, Pub. Acts 1943, which amends the former compensation law, any provision in consequence of which the former holdings of this Court should be changed in the particular noted. While appellant insists the law has been so changed, the Continental Casualty Company, hereinafter referred to as appellee, contends there has been no such change embodied in the amended law.

Primarily appellant in support of its contention seems to rely on the following provisions in Act No. 245, Pub. Acts 1943, which amends the Workmen's Compensation Act. Section 2 of Part I provides: ‘Every employer, public and private, and every employe, unless herein otherwise specifically provided, shall be subject to the provisions of this act and shall be bound thereby.’ Among the exceptions specifically provided in section 2a of Part I are: ‘employers who regularly employ less than 8 employes at one time‘ and other exceptions not pertinent to this case. However, this section also provides that an employer of less than eight employes and some other exempted employers may elect to come under the compensation act, ‘and the purchasing and accepting by such employer of a valid compensation insurance policy * * * shall constitute as to such employer an assumption by him of such liability without any further act on his part, and such assumption of liability shall take effect and continue from the effective date of such policy and as long only as such policy shall remain in force * * *.’ Appellant also stresses in support of its contention the provision in section 9, Part IV of the 1943 amendment which reads: ‘Every insurance company or organization mentioned in section 1 of this part issuing on insurance policy covering workmen's compensation in this state shall file with the compensation commission, within 10 days after the effective shall file with the compensation comission, within 10 days after the effective date thereof, a notice of the issuance of such policy and its effective date * * *.’

It will be observed that appellee did not comply with the provision last above quoted. Instead, while March 31, 1944, was the effective date of its policy, its certificate of coverage was not filed with the department until May 17, 1944, which was more than ten days after the effective date of the policy and subsequent to the date of plaintiff's accident. In this connection appellant asserts that if appellee had complied with the ten day statutory provision above noted, it (instead of appellant) would have been on the risk on the date of plaintiff's accident. Notwithstanding this circumstance, we are unable to agree with appellant's contention that there is any provision in the 1943 amendment in consequence of which our holdings in Phillips v. County of Iron, supra, and Zielke v. A. J. Marshall Co., supra, should be changed. Instead we are of the opinion that the reasons underlying those decisions in the particular under consideration apply with equal force to the Workmen's Compensation Act as amended by Act No. 245, Pub.Acts 1943. The amended statute does not by its express terms or by necessary implication change the rule heretofore followed, wherein we held that an insurer appearing by the department records to be on the risk is liable for payment of awarded compensation, notwithstanding another insurer prior to the...