Costa v. Brake King Automotive

The claimant was represented by Stephen M. Barber, Esq., 332-A Main Street, Cromwell, CT 06416.

The respondent AIG Claim Services, Inc. was represented by Lynn Raccio, Esq., Law Office of Jack V. Genovese II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

The respondents American Home Assurance Co. and its administrator AIG Claim Services was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The Second Injury Fund was represented by Lawrence Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106.

This Petition for Review from the June 9, 2005 Finding and Award of the Commissioner acting for the First District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A MASTROPIETRO, CHAIRMAN. The Second Injury Fund appeals from the June 9, 2005 Finding and Award of the Commissioner acting for the First District. The appellant presents the following issue on appeal; whether the trial commissioner erred in concluding the respondent-employer, Brake King Automotive, was uninsured at the time of the claimant’s injury.

The pertinent facts are as follows. The claimant alleged he hurt his back while employed by the respondent Brake King Automotive. The claimant alleges he hurt his back while changing a wheel bearing on a car. In the proceedings before the trial commissioner a number of issues were presented for her consideration, however, the only issue we need address is that presented above. The trial commissioner found the claimant’s injury occurred on December 16, 2003.

In the course of proceedings before the trial commissioner, testimony was presented indicating that Brake King Automotive had a Workers’ Compensation insurance contract that was to take effect May 15, 2003 and would expire on May 15, 2004. However, the policy was cancelled by the insurer on the basis of Brake King’s failure to pay the premium.

The trial commissioner found the insurer mailed a cancellation notice on November 22, 2003. The cancellation notice was received by the Workers’ Compensation Commission on December 1, 2003. See Findings, ¶ 28. Section 31-348 C.G.S. provides that a Workers’ Compensation insurance policy cancellation “shall not become effective until 15 days after notice of such cancellation has been filed with the Chairman.”1

The trial commissioner concluded that the Workers’ Compensation insurance policy was2 effectively cancelled as of December 7, 2003. The commissioner cited this Board’s opinion in Dengler v. Special Attention Health Services, 3780 CRB-3-98-2 (June 15, 1999) as the basis for her conclusion. The appellant argues the trial commissioner misapplied the law. The appellant argues this tribunal’s pronouncements in Dengler as to how to calculate the effective date of cancellation under § 31-348 was merely dicta. We agree.

In Dengler, this board was asked to determine, inter alia, whether the respondent’s insurance policy was in effect on August 19, 1996 the date of the claimant’s injury or was the insurance policy effectively cancelled August 17, 1996. This tribunal concluded that the insurance policy was in effect on the date of injury. However, the Dengler opinion stated, the cancellation did not take effect until August 31, 1996, and thus, the employer had coverage on the date of the injury. Following the CRB’s ruling in Dengler an appeal was taken with the Appellate Court. The Appellate Court held in pertinent part, “[t]he board properly ruled that [the employer] had coverage under the policy for fifteen days after the [insurance carrier] sent that letter and that the [insurance carrier] was, therefore, responsible for any workers’ compensation benefits owed to the plaintiff arising out of her compensable August 19, 1996 injury.” (emphasis ours) Dengler v. Special Attention Health Services, 62 Conn. App. 440, 462 (2001).

A fair reading of both this tribunal’s and the Appellate Court’s opinion in Dengler, supra, supports the trial commissioner’s conclusion that the cancellation at issue here was effective upon the respondent’s mailing of the notice. However, in Dengler, the CRB was only required to decide if the insurance policy was in effect on August 19, 1996, the date of claimant’s injury. The CRB’s pronouncement as to the effective date of cancellation was not necessary. Arguably, the CRB’s determination in Dengler that the effective date of cancellation was August 31, 1996 was dicta. It therefore follows that the Appellate Court’s opinion was limited to a determination of whether the CRB’s holding in Dengler, i.e., was the insurance policy in effect on the date of the claimant’s injury, legally appropriate. It appears the Appellate Court’s holding and reasoning may have been more expansive.

Here we are asked to determine if the insurance policy was in effect at the time of this claimant’s injury, i.e., December 16, 2003. We conclude it was. In concluding as we have, we refer to the language in the statute itself as well as applicable case law. Section 31-348 C.G.S. provides the cancellation of workers’ compensation insurance “shall not become effective until 15 days after notice of such cancellation has been filed with the chairman.” (emphasis ours).

“Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Doe v. Manson, 183 Conn. 183 (1981). See Sec. 1-1(a) C.G.S. Black’s Law Dictionary (8th Ed. 2004) defines file as “to deliver a legal document to the court.” As the term “filed” is in the past tense one must infer that the cancellation notice must have been delivered to the Chairman before it can be effective. We must next determine what is meant by the term “until 15 days after.” In Lilley v. Larry’s Sales & Repair, 11 Conn. Workers’ Comp. Rev. Op. 188, 189, 1408 CRB-2-92-4 (September 16, 1993) we noted the term, “‘After’ is defined, inter alia, as ‘later than a particular time or period of time: following the expiration of . . . immediately following by not including the day, period, or date of event named . . . .’ Webster’s Third New International Dictionary 1971 at 38.”

Our courts have held, “the day of the act from which a future time is to be ascertained is to be excluded from the computation,” Lamberti v. Stamford, 131 Conn. 396, 397-98 (1944). Furthermore, the law generally does not recognize fractions of a day Tilbert v. Eagle Lock Co., 116 Conn. 357 (1933). See also, M’Gill v. Bank of U. States, 25 U.S. 511 (1827).

We therefore, reverse that part of the June 9, 2005 Finding and Award of the Commissioner acting for the First District concluding the respondent employer was without insurance on the date of the claimant’s injury.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

Every insurance company writing compensation insurance or its duly appointed agent shall report in writing or by other means to the chairman of the Workers’ Compensation Commission, in accordance with rules prescribed by the chairman, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within fifteen days from the date of the policy. The cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollars for each offense. BACK TO TEXT

Respondent AIG’s position states that pursuant to the terms of C.G.S. § 31-348 a workers’ compensation policy is cancelled 15 days after notice of cancellation has been filed. Following the Dengler decision, the 15 days begins to run on the date that notice of cancellation is mailed; under this scenario the policy would have been cancelled as of December 7, 2003 and no coverage would have been in effect on the date of accident. Even assuming that the fifteen (15) day period pursuant to § 31-348 does not begin to run until notice is received by the Commission then the policy would have been cancelled on December 16, 2003, the 15th day after notice was received by the Commission. Accordingly, AIG’s position is that there was no workers’ compensation coverage in effect for Brake King Automotive on December 16, 2003. (Resp. Ex. 2) BACK TO TEXT