Frankfort General Insurance Company v. Conduitt
| Decision Date | 20 April 1920 |
| Docket Number | 10,551 |
| Citation | 127 N.E. 212,74 Ind.App. 584 |
| Parties | FRANKFORT GENERAL INSURANCE COMPANY v. CONDUITT ET AL |
| Court | Indiana Appellate Court |
Rehearing denied October 28, 1920.
Transfer denied January 7, 1921.
From the Industrial Board of Indiana.
Application by the Frankfort General Insurance Company to set aside the approval by the Industrial Board of a workmen's compensation agreement entered into between the city of Newcastle and the dependents of George A. Conduitt, deceased. From a denial of the application, the insurer appeals.
Affirmed.
Elmer E. Stevenson, for appellant.
Evans & Dewitt and Barnard & Barnard, for appellees.
This is an application by appellant to set aside and vacate the approval by the Industrial Board of a workmen's compensation agreement entered into between the city of Newcastle and the other appellees, who are the dependents of George A. Conduitt.
On and prior to February 25, 1916, George A. Conduitt was a member of the fire department of the city of Newcastle, and on said day, while engaged in an effort to extinguish a fire in said city, and while so doing, he accidently received an injury which arose out of and in the discharge of his duties as such fireman, and which resulted in his death February 26, 1916. Within a few days after said death, the appellant by an authorized representative made an investigation of the facts, and caused a report of said injury and death to be filed with the Industrial Board. On March 6, 1916, appellant prepared a compensation agreement upon the form prescribed by the Industrial Board, and caused it to be executed by the city of Newcastle and the other appellees, they being the dependents of George A. Conduitt, in which it was agreed that the city of Newcastle would pay said dependents a weekly compensation of $ 6.93 for a period not exceeding 300 weeks, and funeral expenses not to exceed $ 100. Said agreement was filed with the Industrial Board by the appellant, and on March 9, 1916, was approved by a single member of said board. No application to review the action of the board approving said agreement was ever filed. In accordance with said agreement, said city paid to the appellees the compensation fixed by said agreement for a period of 104 weeks, and also paid burial expenses in the sum of $ 100, all of which was repaid to it by the appellant.
On August 31, 1918, the appellant filed its petition to vacate the approval of the agreement of compensation, alleging that by the mutual mistake and misunderstanding of all of the parties to said agreement it was erroneously assumed that George A. Conduitt, at the time he received the injuries which resulted in his death, was an employe of said city, and that said agreement was entered into as the result of said mutual mistake, and not otherwise; that, as a matter of fact, said George A. Conduitt was not an employe of the city of Newcastle, but was a public officer, and that appellant was not bound under its policy of insurance to pay compensation to the dependents of said decedent; that there was not and is not any liability under the law on the part of either said city of Newcastle or appellant to pay any workmen's compensation; that the compensation agreement was executed, and all the payments of compensation were made without any consideration, and that, upon discovering said mistake, payment of compensation was discontinued. The city of Newcastle, having refused to file a petition to vacate said approval, was made a party defendant. Prayer that the Industrial Board set aside and revoke its approval of said compensation agreement and declare said agreement void.
A hearing upon this application was had before the Industrial Board after notice, and the application of appellant to set aside and vacate the approval of the compensation agreement was denied, from which appellant prosecutes this appeal.
The appellees have filed a motion to dismiss this appeal for the alleged reason that no appeal from the order of the Industrial Board denying an application to vacate the compensation agreement is authorized.
Section 57 of the Workmen's Compensation Act as amended, Acts 1917 p. 227 (§ 8020o2, supra), provides that, if the employer and the injured employe, or his dependents in case of death, reach an agreement in regard to compensation, a memorandum of the agreement in the form prescribed by the Industrial Board shall be filed with the board, and if approved by the board shall be enforceable by court decree.
Section 58 (§ 8020p2, supra) provides that, if the employer and the injured employe, or his dependents, fail to reach an agreement in regard to compensation, or if they have reached such an agreement which has been signed and filed with the board, and compensation has been paid or is due in accordance therewith, and the parties thereto disagree as to the continuance of any weekly payment under such agreement, either party may make application to the board for a hearing in regard to the matters at issue and for a ruling thereon.
Section 59, as amended, Acts 1917 p. 154 (§ 8020q2, supra), provides that:
Section 60, Acts 1917 p. 154 (§ 8020r2, supra), provides that: "If an application for review is made to the board within seven days from the date of an award, * * * the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses as soon as practicable and shall make an award and file same, with a finding of the facts on which it is based. * * *"
Section 61, Acts 1917 p. 154 (§ 8020s2, supra ) relates to appeals and provides that: * * *"
Section 73 (§ 8020e3, supra) requires that the policy of insurance issued by appellant contain a clause to the effect that notice to or knowledge by the employer of the occurrence of an injury should be deemed notice to the insurance carrier; that jurisdiction of the employer for the purpose of the act should give jurisdiction of the insurer, and that the insurer should in all things be bound by and subject to the awards, judgments or decrees rendered against the employer. This section was amended by Acts 1919 p. 158, 172, and now requires the policy to contain other provisions. The effect of this section is to make the insurance carrier a party to the award made by the Industrial Board.
Section 74 (§ 8020f3, supra) provides that the policy should be construed as a direct promise by the insurance carrier to pay to the person entitled to compensation all benefits awarded under the act.
With certain exceptions, it is made the duty of the employe or his representative to give the employer written notice of the occurrence of the jury. § 22 (§ 8020f1, supra.)
No provision is made anywhere in the act for notice to the insurance carrier, nor for making it a party to the agreement for compensation, nor to the application by the employe for compensation. The agreement between the employer and the employe under § 57, supra, when approved by the board, is binding on the parties thereto as long as it stands unrevoked, even though the insurer had no actual notice of its execution or approval.
It evidently was not the intention of the legislature that it should be necessary to make the insurance carrier a party to the agreement between the employer and employe for compensation, nor to the proceedings before the Industrial Board asking its approval of the agreement. The provisions of the compensation act entered into and became a part of the contract of insurance, and, while the insurance carrier was not a necessary party to the agreement for compensation or to an application filed with the Industrial Board for compensation, it does not necessarily follow that it was not a proper party. Under the law, and its contract of insurance, the appellant as an insurance carrier was, as heretofore stated, bound by and subject to the award, judgment and decree rendered against the employer. Being a party in interest, it was a proper, though not necessary, party to the agreement for compensation, and to an application for compensation. When an insurance carrier is made a party, it is entitled to all the rights of the employer, including the right of appeal. If an insurance carrier seasonably appears before the Industrial Board and asks to be made a party to the proceedings, its request should be granted.
The appellant, as insurance carrier, was an interested party, and the city of Newcastle, having failed and refused to file an application to vacate and set aside the approval of the agreement for compensation, had the right to file an application to vacate said order of approval, and the Industrial Board had authority, under the sections hereinbefore mentioned, to hear said application and make a ruling thereon.
Upon the filing of the application herein, the board fixed a date for the hearing, and notified the parties of the...
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