Norwood v. Icon Display Industries

• Decision Date: 21 October 1971
• Citation: 325 N.Y.S.2d 105,37 A.D.2d 877
• Parties: Claim of Anna NORWOOD, Respondent, v. ICON DISPLAY INDUSTRIES, Employer, and Cosmopolitan Mutual Insurance Company, Appellant; Uninsured Employers' Fund, Respondent. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 105

325 N.Y.S.2d 105

37 A.D.2d 877

Claim of Anna NORWOOD, Respondent, v. ICON DISPLAY INDUSTRIES, Employer, and Cosmopolitan Mutual

Insurance Company, Appellant; Uninsured Employers'

Fund, Respondent.

Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Oct. 21, 1971.

Berman & Tannenbaum, New York City, for respondent, Norwood.

Harriet Green & Martin Green, East Paterson, N.J., for employer.

John H. Roberts, New York City, for appellant.

Martin Bergman, New York City, for respondent, Uninsured Employers' fund.

Louis J. Lefkowitz, Atty. Gen., for respondent Workmen's Compensation Board.

Before HERLIHY, P.J., and REYNOLDS, AULISI, STALEY and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal from a decision of the Workmen's Compensation Board, filed April 2, 1970, which found ineffective an attempted cancellation of a compensation policy by the appellant carrier.

Decedent, employed by the employer corporation, suffered a compensable injury on December 5, 1967, and died on December 6, 1967. Appellant, Cosmopolitan Mutual Insurance Company, had issued a policy covering the employer for one year effective April 12, 1967. It would, therefore, be liable for benefits payable to decedent's mother as a result of the December 5, 1967 accident, unless the policy was effectively cancelled.

The policy dated April 12, 1967 was typed on April 19, 1967 and sent to the broker. On April 26, 1967 the policy was returned to the carrier bearing the notation 'Please cancel--assured's check came back'. On May 2, 1967 the policy was stamped with a cancellation date of April 12, 1967. By letter dated May 5, 1967 the carrier notified the insured that the policy was being cancelled effective May 16, 1967. This letter was received on May 8, 1967. On May 5, 1967 the carrier also mailed a notice of cancellation to the Chairman of the Workmen's Compensation Board which was received on May 8, 1967. This notice indicated the effective date of cancellation to be April 12, 1967. This notice stated the reason for cancellation to be 'canc. flat on books'.

The board found that the attempted cancellation was ineffective as not being in accordance with the statute. The carrier now contends that the board erred in its finding and that, in any event, the only issue is whether or not there was in existence an insurance contract at the time of the accident. The basis of this latter contention is that a proposed policy of insurance was sent to the employer which returned the policy indicating it did not want the policy. This contention finds no support in the record. The clear implication from the notation on the policy is that the request for cancellation was made...