Maxfield Wilton & Associates, Inc. v. Industrial Accident Commission

WOOD, J.

The petitioner, an employer, seeks to have annulled an award made by respondent Industrial Accident Commission and to have liability imposed upon respondent Colonial Mutual Compensation Insurance Company, Ltd.

The petitioner was engaged in the business of building maintenance and employed a number of workmen. One John F. Willis was employed by petitioner to do painting on an apartment house and suffered injuries which occurred in the course of and arose out of his employment. He filed an application with respondent commission to obtain an award against petitioner and respondent insurance company. The commission made an award against petitioner only, making the finding that ‘ ‘ at the said time said employer was not insured as alleged herein”. The insurance company contended before the commission and contends now that the type of work performed by the employee was not covered by the insurance policy, and also that the insurance policy was not in force at the time the injuries were suffered. In its answer to the

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petition for a writ of review the commission states: “However, since we agree with petitioner’s contention that if there had been a valid policy of compensation insurance that the policy in question would have protected petitioner in the present case, it is unnecessary to further consider the question of coverage, in so far as it would be applicable to the injured employee John F. Willis. It is the position of the commission that there was no policy of compensation insurance in effect at the time Willis sustained his injuries, for the reason that petitioner did not pay the initial premium on or before January 3rd, 1936.” Although there is no express finding that petitioner was protected by the policy as regards the injuries of Mr. Willis it is apparent from this statement that such a finding would have been made but for the conclusion reached by the commission on the question whether the policy was in force for any purpose. There is substantial evidence in the record to sustain such a finding if it had been made.

Petitioner applied to respondent insurance carrier for a policy covering all of its employees and on December 24,-1935, there was delivered to petitioner a policy of insurance which provided: ‘ ‘ The period during which the policy shall remain in force . . . shall be from December 24,1935 to December 24, 1936 ...” The policy also contained the following provision: “As a condition precedent this policy is null and void unless the total initial premium stated herein is paid to the Insurance Holding Company, Inc., at its office in Los Angeles on or before January 3, 1936.” The employee was injured December 27,1935. Immediately thereafter petitioner’s attorney had a conversation with the vice-president of the insurance carrier. The carrier positively denied liability, placing its denial upon the sole ground that the-work done by Mr. Willis did not come within the classification which was covered by the policy and claiming that coverage of Mr. Willis’ work would have called for a higher rate of premium. Petitioner’s attorney then requested that petitioner be billed for a premium at the higher rate and offered to pay the premium at the higher rate. This offer was refused by the insurance carrier. Petitioner did not pay the premium during the period ending January 3, 1936, and thereafter the carrier wrote to petitioner that “the policy became null and void from the inception date 12/34/35”.