Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
Plaintiff's domestic servant obtained a workmen's compensation award against him for injuries she sustained while employed in his home. He paid the award, and then sued defendant in this action to recover the amount of the award plus the expenses incurred in contesting it. The trial judge entered judgment of dismissal at the end of plaintiff's case, and he appeals.
Plaintiff's first point is that defendant's policy, captioned "Comprehensive Personal Liability Policy," covers the workmen's compensation claims of domestic servants, citing Gunther v. Metropolitan Cas. Ins. Co. , 33 N.J. Super. 101 (Law Div. 1954).
After Gunther was decided the National Bureau of Casualty and Surety Underwriters deleted from such policies the words "(2) any residence employee of the insured while engaged in the employment of the insured." (Gunther , 33 N.J. Super. , at p. 104; Robert E. Rodes, Jr., "Insurance," "Annual Survey of New Jersey Law," 10 Rutgers L. Rev. 219, at p. 233 (1955)). Therefore, when the policy sued upon was issued, in 1956, the exclusionary clause provided (emphasis ours):
"This policy does not apply:
(d) to bodily injury to * * * any employee of the insured arising out of and in the course of his employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or if the insured has in effect on the date of the occurrence a policy providing workmen's compensation benefits for such employee; * * *."
Plaintiff contends that the above mentioned deletion did not succeed in eliminating the domestic servant workmen's compensation coverage, and that the reasoning of the Gunther case still applies and makes defendant liable.
That is not so. The court had no doubt, in Gunther , that the insurance company had no intention to indemnify against the workmen's compensation claims of domestic servants. The reason that the company was held liable in that case was because of the use of the words which have now been eliminated. The court held that "Professor Corbin's 'reasonable and disinterested third party,'" (and therefore the insured) had the right to understand those words "to mean that defendant meant to take the special class 'residence employees' out of the general class 'any employee' * * * and therefore, although workmen's compensation claims by employees generally * * * [were] not covered by the policy, workmen's compensation claims of residence employees * * * [were] covered. * * *" (Gunther , 33 N.J. Super. , at pp. 104-105, 113-114; cf. Rodes, "Insurance," supra , at pp. 232-234, 236-239.) In Gunther , court and counsel agreed that if the words which have since been eliminated did not appear, there would be no such coverage (33 N.J. Super. , at p. 114). Therefore, since those words have been taken out, there remains no basis upon which the insured may validly argue that the language of the policy covers such claims. As was pointed out in Gunther , 33 N.J. Super. , at p. 110, this form was prepared for use in most, and perhaps all, of the states, and the emphasized words of the exclusion were drafted by the underwriters out of excess of caution, for use in those states in which domestic servants are not covered by the workmen's compensation act unless the employer indicates his election to place them under the act by obtaining a workmen's compensation policy.
Plaintiff attempted to prove that defendant was estopped to deny coverage. That proof was predicated upon dealings and conversations with Frenkel & Company, Inc. (Frenkel),
allegedly defendant's agent. Frenkel had not countersigned the policy. Plaintiff called no witnesses to prove Frenkel's agency, but offered the following interrogatory and answer:
"* * * state what the relationship of Frenkel & Company was to the defendant in 1957 and ...