Equitable Cas. Underwriters v. Indus. Comm'n

• Decision Date: 28 October 1926
• Docket Number: No. 17150.,17150.
• Citation: 322 Ill. 462,153 N.E. 685
• Parties: EQUITABLE CASUALTY UNDERWRITERS v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

322 Ill. 462

153 N.E. 685

EQUITABLE CASUALTY UNDERWRITERS

v.INDUSTRIAL COMMISSION et al.

No. 17150.

Supreme Court of Illinois.

Oct. 28, 1926.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding under the Workmen's Compensation Act by Louis Lehner, claimant, against the Sun Window Cleaning Company and the Equitable Casualty Underwriters, insurers. Order of the Industrial Commission making the insurer party respondent and jointly liable for the award was affirmed by the circuit court in a certiorari proceeding, and the insurer brings error.

Affirmed.

Miller, Gorham, Wales & Noxon, Thomas C. Angerstein, and George W. Angerstein, all of Chicago, for plaintiff in error.

Fred A. Gariepy and Lovin L. Hogue, both of Chicago, for defendants in error.

DUNCAN, J.

Defendant in error, Louis Lehner, sustained accidental injuries arising out of and in the course of his employment with the Sun Window Cleaning Company on February 15, 1923. He filed an application for adjustment of claim with the Industrial Commission, and on August 31, 1923, an award was entered in his favor by an arbitrator for compensation for $697 and $100 for medical services against Sun Window Cleaning Company. The award for compensation was confirmed by the Industrial Commission on February 29, 1924, in the said sum of $697, but the commission refused to allow anything for medical services. On certiorari proceedings in the circuit court of Cook county the circuit court set aside the award of the Industrial Commission and entered an award in favor of defendant in error on May 9, 1924, amounting to $697 as compensation and the further sum of $100 for medical services, and found both of said amounts had accrued and were then due. The record further shows that on October 12, 1923, after the award was entered by the arbitrator and before the decision of the Industrial Commission on review of the award, George A. Oleson, claim agent for the Equitable Casualty Underwriters, addressed a letter to the Industrial Commission, in which, through him as agent, the insurance company denied liability for compensation due or to become due defendant in error under its policy with the Sun Window Cleaning Company, and stated as its ground for such contention that the Sun Window Cleaning Company had failed to notify it of the accidental injury sustained by defendant in error, in accordance with the requirements in its policy of insurance. A letter had previously been written to the attorney for the defendant in error by the same claim agent, notifying him that it would be necessary for defendant in error to obtain payment of the compensation from Sun Window Cleaning Company inasmuch as the insurer had disclaimed all liability for the same, but did not state in such letter its grounds for such disclaimer or refusal. The insurance company had also disclaimed and denied all liability under its insurance contract with the Sun Window Cleaning Company, and after the award aforesaid was entered in the circuit court the insurance company, upon demand of defendant in error for payment thereof, refused to pay the award.

On June 23, 1924, Louis Lehner filed his petition, under section 28 of the Compensation Act (Smith-Hurd Rev. St. 1925, c. 48, § 165), against Equitable Casualty Underwriters, in which he set up the foregoing facts and prayed in his petition that the insurance company be made a party to the proceedings before the Industrial Commission, and that the award of $797 aforesaid be entered against Sun Window Cleaning Company, the employer, and Equitable Casualty Underwriters, the insurance carrier, jointly. The insurance company filed a motion to dismiss the petition on the ground that the Industrial Commission was without power and authority to consider the petition and had no jurisdiction to consider the same or grant the prayer thereof; also, that the matters alleged in the petition are insufficient to authorize the prayer thereof and showed no right to the relief prayed. The facts alleged in the petition were proved by competent evidence. It is also true that the petition aforesaid further alleged, and the evidence thereunder showed, Sun Window Cleaning Company had a policy of compensation insurance with the Equitable Casualty Underwriters, and that demand had been made upon Sun Window Cleaning Company for the payment of the compensation awarded by the circuit court and that it had refused to pay the same.

It was also proved on the hearing of the petition that in response to a letter from the Industrial Commission stating that Sun Window Cleaning Company had not complied with the rules of the Industrial Commission as to insurance coverage, a certificate of insurance was filed with the Industrial Commission by the Equitable Casualty Underwriters, in which it certified that the Sun Window Cleaning Company was insured by it covering the obligation imposed upon the Sun Window Cleaning Company by the Workmen's Compensation Act, and that the insurance was written by and in accordance with the policy filed by the Equitable Casualty Underwriters with the Industrial Commission. That policy of insurance provided, among other things, that the insurer agreed to assume and perform each and every obligation that the Workmen's Compensation Laws, with amendments thereto, required the assured to do and perform on account of personal injuries, including death resulting at any time therefrom, accidentally sustained while the policy was in force, by any employee of the assured in the course of and arising out of his employment by the assured. A rider attached to the policy provided that the obligation of the insurer included such Workmen's Compensation Laws as therein cited and described, which laws were described as House Bill No. 841, Session Laws 1913, and any laws amendatory thereto. The term of the policy was from June 12, 1922, to June 12, 1923, and the accident for which compensation was awarded against Sun Window Cleaning Company occurred during the existence of the policy. After a hearing on said petition and consideration of the evidence aforesaid the Industrial Commission denied the insurance company's motion to dismiss the petition and granted the prayer of the petition, making Equitable Casualty Underwriters an additional party respondent in the proceedings for allowance of claim, and made it jointly liable with the Sun Window Cleaning Company for payment of compensation awarded in that proceeding in the sum of $797. The circuit court of Cook county in a certiorari proceeding confirmed this order and award against the insurance company and the Sun Window Cleaning Company, jointly, and this court has allowed the petition of the insurance company for a writ of error to review the record.

Section 28 of the Workmen's Compensation Act provides that in the event the employer does not pay the compensation for which he is liable, then an insurance company, association, or insurer which may have insured such employer against such liability shall become primarily liable to pay to the employee, his personal representative, or beneficiary, the compensation...