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Toebe v. Employers Mutual of Wausau

Decided: March 11, 1971.

ALLEN D. TOEBE, PLAINTIFF-RESPONDENT CROSS-APPELLANT,
v.
EMPLOYERS MUTUAL OF WAUSAU, ET AL., DEFENDANTS-APPELLANTS CROSS-RESPONDENTS



Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.

Goldmann

[114 NJSuper Page 41] Plaintiff, holder of a New Jersey workmen's compensation award entered against his employer, Robert Schmidt Truck Leasing, Inc., of New Brighton,

Minnesota (Schmidt), brought an action in the Superior Court, Law Division, to recover payment of the award against defendant Employees Mutual Liability Insurance Company of Wisconsin, which had issued a workmen's compensation insurance policy in Minnesota to Schmidt under the assigned risk law of Minnesota. On cross-motions for summary judgment the trial judge denied defendant's and granted plaintiff's motion. Plaintiff then applied for a counsel fee of $4,725.33 for services rendered by his attorney in the present action. The court awarded only $1,300. Final judgment on the entire case was thereafter entered in favor of plaintiff. Defendant appealed, and plaintiff filed a cross-appeal as to the counsel fee.

The facts are essentially uncontradicted. Plaintiff, an employee of Schmidt, suffered a work-connected injury while operating one of his employer's trucks in New Jersey. He filed a petition with the New Jersey Division of Workmen's Compensation and was awarded approximately $13,201 against Schmidt. (Defendant refused to give Schmidt a defense, claiming it had no obligation to do so under its policy.) Plaintiff docketed this award as a judgment in the Essex County Court and then in the Superior Court. Schmidt apparently never paid any part of the award; the reason for this does not appear in the record. Plaintiff eventually instituted an action against defendant insurer in the Law Division.

The "Standard Workmen's Compensation and Employers' Liability Insurance Policy" issued to Schmidt by defendant contains the following insuring agreements:

I Coverage A -- Workmen's Compensation

To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law.

Coverage B. -- Employers' Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained in the United States of America, its territories or possessions, or Canada by any employee of the insured arising out of

and in the course of his employment by the insured either in operations in a state designated in Item 3 of the declarations or in operations necessary or incidental thereto.

Paragraph 3 of the Declarations reads as follows:

Coverage A of this policy applies to the Workmen's compensation law and any occupational disease law of each of the following states: Minnesota.

The issue on the cross-motions for summary judgment, as stated by the trial judge and briefed by the parties, is whether defendant is liable, under its contract of insurance made and issued to the employer in Minnesota, to pay the award granted by our Workmen's Compensation Division, where the policy specifically provided that coverage was limited to benefits payable under the workmen's compensation law of Minnesota. Answering this question in the affirmative, the judge held that "since New Jersey has jurisdiction to grant the award in this case, it should also have jurisdiction to permit an injured workman all the statutory remedies to effect recovery against his employer's insurance carrier." To deny the employee this supplemental relief when he is unable to collect the award from his employer would, in the judge's view, be against public policy.

Defendant concedes that the New Jersey Division of Workmen's Compensation had jurisdiction to entertain plaintiff's petition and to enter an award against his employer for his work-connected injury. See Boyle v. G. & K. Trucking Co. , 37 N.J. 104 (1962). The real issue, it says, is whether the employer's liability for that award is covered by the terms of the workmen's compensation policy which the company issued to Schmidt, by ...


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