Marandino & Marandino v. Marandino’s d/b/a John Marandino

JOANNE MARANDINO (dependent widow of John Marandino) and ESTATE OF JOHN MARANDINO

The claimant was represented by Harold J. Geragosian, Esq., 380 West Main St., New Britain, CT 06052.

The respondents were represented by Ellen Aspell, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

This Petition for Review from the July 14, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District was heard September 20, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant1 has petitioned for review from the July 14, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District. She argues on appeal that the commissioner erred by dismissing her claim on the merits when the issue at bar was her Motion to Preclude, that he erred in denying the Motion to Preclude, and that the decedent had elected to obtain workers’ compensation coverage as a sole proprietor at the time of his death, thereby entitling his widow to workers’ compensation benefits. We affirm the trial commissioner’s decision.

The decedent , John Marandino, died on May 20, 1992 after a fall from his truck that caused him to suffer injuries and a heart attack. He was self-employed at the time. A Form 30C was sent to the Sixth District Office and the Fradette Agency, whom the claimant contends is the agent of the alleged insurer Liberty Mutual, on October 9-10, 1992. The insurer did not file a Form 43 Notice of Intention to Contest Liability until December 1, 1992, 51 days after the Fradette Agency received the notice of claim.

Apparently, the decedent contacted his insurance agent at the Fradette Agency in April 1992. The decedent’s daughter gave the agent a check for $750.00 on April 3, 1992, as a down payment for workers’ compensation insurance. The agent filled out the application form at the decedent’s direction, on which he elected not to be covered for workers’ compensation risks, and the decedent’s daughter signed her father’s name to the application. The commissioner found that the decedent’s son-in-law was covered by the policy, and that it would have cost the decedent thousands more to cover himself under the policy. The commissioner specifically reiterated that the decedent told his agent that he did not want to be covered personally, and that he did not purchase workers’ compensation insurance for himself at the time of application.

On May 5, 1992, the insurer sent the claimant a policy, including an “Election of Coverage” page that provided “if we do not receive the signed form within thirty (30) days, all persons will be excluded.” The claimant alleges that the decedent signed this form. The commissioner found that the form was not filed, however, and that the form would have had to be received by the insurer and filed with this Commission before it could become effective in insuring the decedent. As the decedent never elected to be covered within the meaning of § 31-275(5)(E) C.G.S. [now § 31-275(9)(B)(v)], the commissioner ruled that neither he nor his dependent widow had any right to compensation. The claimant has appealed that decision.2

According to the notice of the November 29, 1993 formal hearing that the claimant attached as an appendix to his brief, the issues at that hearing were “Motion to Preclude, Compensability, Funeral Allowance & Medical Treatment.” On page 2 of the transcript of that hearing, which is also attached as an appendix, the commissioner recites those four issues as being the subject of the hearing. We thus do not believe that the claimant failed to receive notice that the compensability of the injury would be an issue at the hearing. Compare Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995). Further, in order to entertain the claimant’s Motion to Preclude pursuant to § 31-294c, the Workers’ Compensation Commission must have subject matter jurisdiction over her claim. It was the trial commissioner’s duty to make that determination, i.e., whether the decedent had brought himself within the ambit of the Workers’ Compensation Act, before ruling on the claimant’s motion. Castro v. Viera, 207 Conn. 420, 433; (1988) Litke v. Crowell Builders, 11 Conn. Workers’ Comp. Rev. Op. 77, 78, 1215 CRB-5-91-4 (May 4, 1993). Thus, the commissioner was entitled to consider whether the decedent had validly elected to be covered under the Act.

Despite the commissioner’s citation of § 31-275(5)(E), which addresses the exclusion from coverage of a corporate officer, it is undisputed that the claimant was self-employed as the sole proprietor of Marandino’s. Section 31-275(6) [now § 31-275(10)] states that a sole proprietor “may accept the provisions of this chapter by notifying the workers’ compensation commissioner having jurisdiction, in writing, of his intent to do so.” The statute does not presume that a sole proprietor needs workers’ compensation insurance; rather, he must opt into the Act by following a prescribed course of action.

The only evidence in this case that any action was taken toward that end is a form from Liberty Mutual dated May 5, 1992, on which an “X” was placed on the line next to the phrase “I do elect to be covered,” underneath which is the signature of John Marandino. The signature is not dated, and the commissioner found that “[t]he decedent purportedly signed the ‘Election of Coverage’ before his death.” This is hardly a ringing endorsement for the authenticity of that document. Nevertheless, the claimant argues that the insurer bound itself to cover the claimant for at least thirty days from May 5, 1992, by virtue of that form.

The form in question provides only that the sole proprietor may elect to be covered under the Act by completing “any attached forms,” and that such coverage will cost extra. It concludes by stating, “[i]f we do not receive the signed form within thirty (30) days, all persons will be excluded.” We do not believe that the form can reasonably be read to represent that coverage was being provided to the claimant, even taking into account the rule that insurance policies are to be construed against the drafter. That argument also fails to overcome the fact that notice reflecting the decedent’s desire to be covered under the Act was not sent to this Commission, as required by statute. We thus find no error in the trial commissioner’s dismissal of this claim.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 The claimants in this case are Joanne Marandino, the dependent widow of John Marandino, and the Estate of John Marandino. For the purpose of this opinion, we will only refer to Joanne Marandino. BACK TO TEXT

2 The claimant also filed a Motion to Submit Additional Evidence, in which she sought to introduce proof that it is the customary practice of an insurance agent to handle filings concerning election of coverage forms. As she could not demonstrate that this evidence was unavailable at the time of the formal hearings, this board denied that motion in a June 4, 1996 decision. BACK TO TEXT