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Goldmann v. Lumber Mutual Casualty Insurance Co.

Decided: March 25, 1954.

EUGENE GOLDMANN, PLAINTIFF,
v.
LUMBER MUTUAL CASUALTY INSURANCE COMPANY OF NEW YORK, AND JOHANNA FARMS, INC., DEFENDANTS



On order to show cause.

Hutchinson, J.c.c.

Hutchinson

This is a summary action against an insurance carrier by an injured employee for the purpose of enforcing his claim for compensation as provided for in R.S. 34:15-84 upon the failure of the employer to make adequate and continuous compensation payments.

The facts are as follows: Eagene Goldmann suffered an injury allegedly arising out of and in the course of his employment with Johanna Farms, Inc. as the result of an accident which occurred on November 25, 1950. On June 6, 1951 Goldmann filed an employee's claim petition in the Division of Workmen's Compensation for compensation, naming as respondents the Lumber Mutual Casualty Insurance Company of New York and Johanna Farms, Inc. On August 15, 1951 respondents filed an answer denying that the petitioner was an employee at the time of the alleged accident. The answer was signed by the attorney for the insurance carrier. The attorney for the carrier participated in a pretrial conference on May 2, 1952, appeared in reply to a motion to take depositions of the petitioner de bene esse , and then appeared on two different occasions to take the testimony de bene esse.

On December 17, 1952, the evening before the hearing before the deputy director, the insurance carrier served upon Johanna Farms, Inc. and the attorney for Johanna Farms, Inc., a disclaimer of liability under its policy of insurance,

stating, however, that it would defend the proceeding without cost, but would not pay any judgment rendered. At the outset of the hearing the attorney for Johanna Farms, Inc. stated to the deputy director, "I do not want to and do not intend to agree to any such terms." Then the attorney for the carrier after making two motions to amend the answer, moved to strike from the title of the case the Lumber Mutual Casualty Insurance Company of New York. Counsel for the petitioner agreed and the deputy director ordered the pleadings to be so amended. The attorney for the carrier then moved to amend another paragraph in the answer, and continued to actively participate in the hearing for four days and 499 pages of testimony, examining and cross examining witnesses, objecting to evidence and arguing matters of law.

After the conclusion of the hearing the deputy director held that the petitioner was an employee of the respondent within the meaning of the Workmen's Compensation Act, that he suffered a compensable accident while in the pursuit of a special mission for his employer, and that the fracture sustained by the employee aggravated a pre-existing heart condition which resulted in total permanent disability. Accordingly, an award was made against the respondents Johanna Farms, Inc. and its insurance carrier, the Lumber Mutual Casualty Insurance Company of New York.

On February 19, 1953 the insurance carrier by its attorney filed a notice of appeal to the County Court. On the same day the carrier served a second disclaimer of liability. The appeal was prosecuted by the carrier. This court, in Goldmann v. Johanna Farms, Inc. , 26 N.J. Super. 550 (Cty. Ct. 1953), affirmed the award as to Johanna Farms, Inc., the employer, and reversed as to Lumber Mutual Casualty Insurance Company of New York on the ground that the Bureau lacked jurisdiction to decide the legal issue of coverage raised by the carrier.

Preliminary to the consideration of the merits in this proceeding, the carrier objected that the "petition" for the order to show cause was not signed by the petitioner (plaintiff),

Goldmann, as provided for by the former Rule 3:79-2, now R.R. 4:85-2, but rather by his attorney, and that the affidavit of Goldmann was not served upon the carrier according to the rules. The former Rule 3:1-2, now R.R. 4:1-2, provides:

"[These rules] shall be construed to secure simplicity in procedure, fairness in administration and the elimination of ...


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