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Ward's Estate v. Red Star Exp. Lines of Auburn

Supreme Court of New York, Appellate Division

October 6, 1955

Ward's Estate
v.
Red Star Exp. Lines of Auburn

Page 472

[144 N.Y.S.2d 885] Albert P. Thill, Brooklyn, for Red Star Express Lines of Auburn, Inc., and Liberty Mut. Ins. Co., appellants.

Jacob K. Javits, Atty. Gen. (Roy Wiedersum and Harry Pastor, Asst. Attys. Gen., of counsel), for respondent Workmen's Compensation Board.

Michael A. Gurda, Middletown, for Kathleen Ward, claimant-respondent.

Page 473

Chernin & Gold, Binghamton, for Eugene Rogers Trucking Co., and/or Rogers Trucking Co., and/or Eugene Rogers.

Levene & Gouldin, Binghamton, for American Lumbermen's Mut. Ins. Co.

Bernard Katzen, New York City (Victor Fiddler, Glen Oaks, of counsel; George J. Hayes, New York City, on the brief), for State Insurance Fund, Carrier.

Before FOSTER, P. J., and BERGAN, COON, HALPERN, and ZELLER, JJ.

BERGAN, Justice.

In this case the Workmen's Compensation Board has relieved from liability the State Insurance Fund which had insured the deceased's direct employer. It has imposed liability for death benefits on a general contractor and its insurance carrier, Liberty Mutual Insurance Company, with which the employer had a subcontract for trucking. The theory of decision is that the direct employer was not insured at the time of accident. The statute, Workmen's Compensation Law, § 56, provides that unless the subcontractor primarily liable for payment of compensation benefits 'has secured compensation therefor' the contractor or his carrier [144 N.Y.S.2d 886] shall be liable for such payment. The contractor and its carrier, the Liberty Mutual Insurance Company, appeal.

The controversy on this aspect of the appeal is between the two carriers; and the issue is whether there is substantial evidence in the record in the case to find, as the Board did, that the State Insurance Fund had cancelled the policy of compensation coverage carried by the decedent's employer before the fatal accident.

The statute closely governs the process of cancellation. No contract of insurance 'shall be cancelled' before its expiration until 'at least ten days after' two things are done. Workmen's Compensation Law, § 54, subd. 5. One is that notice of cancellation 'be filed in the office of the chairman' of the Workmen's Compensation Board; the other is that notice 'shall be served on the employer'. We have held that unless it is clearly established that cancellation has been effected just as the statute says it must be, coverage is deemed to have continued. Moss v. P. A. Trucking Co., 284 A.D. 675, 134 N.Y.S.2d 393; cf. Horn v. Malchoff, 276 A.D. 683, 97 N.Y.S.2d 272.

In the case of cancellation of a policy by the State Insurance Fund as a carrier, there is an additional statutory requirement before cancellation may be deemed effected. The 'right to cancellation of a policy' shall be exercised only 'for non-payment of premiums'. Section 54, subd. 5.

We turn, then, to the unstable record on which the State Insurance Fund has been relieved of ...


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