Morrisseau v. Legac
| Citation | 123 Vt. 70,181 A.2d 53 |
| Decision Date | 01 May 1962 |
| Docket Number | No. 1156,1156 |
| Court | United States State Supreme Court of Vermont |
| Parties | Pauline Ann MORRISSEAU, Widow of Joseph O. Morrisseau, v. J. LEGAC, d/b/a J. Cole Steel Construction Company, The Employers Liability Assurance Corporation, Ltd., O'Bryan Construction Company, Inc., and Massachusetts Bonding & Insurance Company. |
Barber & Barber & Grussing, Brattleboro, for plaintiff.
Fitts & Olson, Brattleboro, for Employers Liab. Assur. Corp.
John S. Burgess, Brattleboro, and Edward J. O'Brien, Keene, N. H., for O'Bryan Constr. Co., Inc. and Mass. Bonding & Ins. Co.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
This is an appeal by the Employers Liability Assurance Corporation, Ltd., one of the defendants, and the claimant, Pauline Ann Morrisseau, from certain findings, conclusions, and orders of the Commissioner of Industrial Relations, pursuant to the provisions of 21 V.S.A. § 672. Certain questions were certified to this Court by the Commissioner for determination.
The claimant, Pauline Ann Morrisseau, is the widow of Joseph O. Morrisseau. Mr. Morrisseau sustained a fatal injury in the course of his employment at Brattleboro, Vermont, on September 13, 1960. As dependents the deceased left his widow and three minor children. The widow has since remarried. No question is raised as to the amount of the award.
At the time of the accident the deceased was working at the Case Brothers Plant, No. 4, Brattleboro, Vermont, which was being constructed by the defendant, O'Bryan Construction Company, Inc. the general contractor, with its office and place of business at Brattleboro, Vermont.
The defendant, J. Legac, d/b/a J. Cole Steel Construction Company, was a subcontractor on this project for O'Bryan in the erection of structural steel for the Case Brothers plant. The decedent was paid by the sub-contractor under an arrangement whereby O'Bryan provided the funds for the weekly payroll, which sums so advanced were deducted from the amount eventually found due the sub-contractor from O'Bryan under the sub-contract. The office of J. Cole Steel was located at South Deerfield, Mass.
Sometime between August 4th and 6th of 1960 the sub-contractor needed additional help in the erection of steel on this project, and, on request made by the sub-contractor to O'Bryan, the latter furnished or loaned some men in its employ to J. Cole Steel, including the deceased.
The Massachusetts Bonding & Insurance Company was the workmen's compensation insurance carrier for O'Bryan. The defendant-appellant, The Employers Liability Assurance Corporation, Ltd., was found by the Commissioner to have been the insurance carrier for J. Cole Steel, the sub-contractor, who is now in bankruptcy.
All parties appeared at the hearing below, following which the Commissioner made and filed findings of fact, conclusions of law, and a judgment order. The order, in so far as here material, reads:
'ORDER
'IT IS HEREBY ORDERED that the Employers Liability Assurance Corporation, Ltd., and in case of its default, the J. Legac, d/b/a J. Cole Steel Construction Company, and in the case of its default, the Massachusetts Bonding and Insurance Company, and in case of its default, the O'Bryan Construction Company, pay to the claimant, Pauline Ann Morrisseau, for the support of herself and three minor children, * * *.
'IT IS FURTHER ORDERED that the claimant submit, within twenty days from the date of the Order, the costs that she has incurred in prosecuting her claim so that a Supplementary Order may be made by me thereby assessing against the said defendants said costs, and ordering the payment of same in accordance with the provisions of Title 21 V.S.A. 678-679, unless costs are voluntarily assumed by the defendants.'
On the appeal by The Employers Liability Assurance Corporation, Ltd., the questions as certified are summarized as follows: (1) Is the conclusion of the Commissioner of Industrial Relations that this insurance company is liable for the benefits to the claimant and her minor children supported by the evidence and correct in law? (2) Is the legal conclusion of the Commissioner that this insurance company was familiar with the purposes for which certificates of insurance are filed in the office of the Commissioner supported by evidence and correct in law? (3) Is the Commissioner's order holding that this insurance carrier defended this cause without 'reasonable grounds' and, stating that a supplemental order would follow assessing costs against the defendants in accordance with the provisions of 21 V.S.A. §§ 678-679 supported by the evidence and correct in law?
We do not sit in appeals like this as a fact-finding body. Our jurisdiction under 21 V.S.A. § 672 is limited to a review of such law questions as the Commissioner has certified up to us. McKane v. Capital Hill Quarry Co., 100 Vt. 45, 46, 134 A. 640.
On notice of appeal filed by the claimant eight questions were certified for review, the essence of which challenge the authority or jurisdiction of the Commissioner to determine, among the defendants, the order of priority under which payments by the various defendants should be made. These questions are directly addressed to the form of the Commissioner's order and present the legal question as to whether or not the liability of each defendant is primary and direct, rather than contingent as expressed in the order.
No appeal was taken by J. Cole Steel, nor briefs filed by this company. While neither the defendants, O'Bryan Construction Co., Inc., nor Massachusetts Bonding and Insurance Company, filed a notice of appeal or requested a certification of questions by the Commissioner, a brief has been filed joined in by this insured and its carrier. Each are here under the provisions of Chapter 102, Appellate Procedure, Title 12 V.S.A. § 2382.
The Employers Liability Assurance Corporation, Ltd., denies coverage. The summarized questions, (1) and (2) presented by its appeal bring directly into play its compensation insurance policy No. WC. 8066277 issued by this carrier to J. Cole Steel; the effect of the filing with the Commissioner a certificate of insurance as required by 21 V.S.A. § 690; the evidence and record in the case; the spirit, purpose, and intent of the workmen's compensation law of this State, and rules of construction relating thereto.
The policy in question was written to cover operations of J. Cole Steel in Massachusetts for period November 19, 1959 to November 19, 1960. The Commissioner, having learned that J. Cole Steel was operating in Vermont, informed this construction company by letter dated September 8, 1960 that there was no evidence of workmen's compensation insurance coverage filed in his office as required by law. In the letter the Commissioner stated that if they were not covered in Vermont such insurance should be procured at once and that the insurance agent should file a copy of the policy with him.
On September 12, 1960 the Commissioner received a reply from this insured advising that work was being done on a sizable job at the University of Vermont, also Waterbury State Hospital, and that plans were made to take more jobs in Vermont. The letter also stated, This letter to the Commissioner was prepared by Mark L. (Mack) Collins, General Manager for J. Cole Steel. In referring to this letter, on cross examination of Mr. Collins we have the following question and answer.
A. W. Borawski, Inc., is a large insurance agency in Northampton, Mass. and agent of Employers Liability. The policy in question was issued through this insurance office and countersigned by Alexander W. Borawski, Inc., as authorized agent.
Under the provisions of 21 V.S.A. § 690 an employer subject to the provisions of our compensation law shall cause to be filed with the Commissioner a certificate of insurance setting forth policy number operations covered, and other information. Such certificate is to be signed by a duly authorized representative of the insurance carrier. Under this section a copy of the policy may be required by the Commissioner.
A certificate of insurance dated September 16, 1960 was issued by Employers Liability, countersigned by Alexander W. Borawski Inc. as authorized agent and filed with the Commissioner on September 20, 1960. This certificate refers to policy WC 8066277. Nothing appears in the certificate to show or indicate that coverage was limited to operations of J. Cole Steel in Massachusetts. The Commissioner found that Employers Liability Assurance Corporation, Ltd., as insurance carrier writes other workmen's compensation insurance policies for coverage within the State of Vermont. Further, it sends certificates as evidence of coverage on numerous occasions to the Department of Industrial Relations in Vermont, and is familiar with the requirements of the Commissioner's office and purpose for which such certificates are filed. This finding has sufficient evidentiary support.
Findings of the Commissioner of Industrial Relations, in cases within his jurisdiction, stand like those of a referee or master in that, if they are fairly and reasonably warranted by the evidence, they are conclusive and binding on appeal. Norman v. American Woolen Co., 117 Vt. 28, 31, 84 A.2d 125. McKane v. Capital Hill Quarry Co., supra, 100 Vt. 46, 134 A. 640.
The contract between O'Bryan and J. Cole Steel required that the latter have...
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