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National Grange Mutual Insurance Co. v. Schneider

Decided: July 14, 1978.

NATIONAL GRANGE MUTUAL INSURANCE CO., PLAINTIFF,
v.
JOHN SCHNEIDER AND EDWARD MUELLER, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. CHRISTOPHER CARBONARO, AN INFANT BY HIS G/Aœ LILLIAN CARBONARO, INDIVIDUALLY, U.S. SLICING MACHINE CO., SERKEL INC., U.S. BERKEL CO., PROCTOR SILEX CORP./GENERAL EQUIPMENT CO., DEFENDANTS, V. BIERTUEMPFEL-OSTERTAG AGENCY, INC., ROBERT P. OSTERTAG AND DIETER POLEDNIK, THIRD-PARTY DEFENDANTS



Cohen, J.c.c. (temporarily assigned).

Cohen

[162 NJSuper Page 228] Christopher Carbonaro was 13 years old during the six weeks or so that

he worked at the Carteret Meat Market. He had no employment certificate. No 13-year-old has. N.J.S.A. 34:2-21.7. For much of his short career he worked 60-hour weeks in violation of N.J.S.A. 34:2-21.3. One day, while operating an electric meat grinder, he lost his right arm. It is unlawful to permit anyone under 16 "to work in, about or in connection with power-driven machinery." N.J.S.A. 34:2-21.17. Christopher's employer professes ignorance of his age and total unawareness of the existence, let alone the details, of the child labor laws. In this case it need not be decided whether his lack of knowledge was real or perhaps wilful. Hartford Accident Ins. Co. v. Benevento , 133 N.J.L. 315 (E. & A. 1945).

In this action the employer's insurer seeks a declaration of noncoverage of the injury. Its action was generated by Christopher's starting a civil action for compensatory and punitive damages against the butcher shop proprietors. They called upon plaintiff to defend. It denied coverage under each of two policies it issued to the butcher shop. One was a "Standard Workmen's Compensation and Employee's Liability Policy." The other was a "Special Multiperil Policy" which, as the name suggests, included a broad range of protections. It plainly excluded worker injury arising out of and in the course of employment. It could not lawfully include statutory coverage for worker injury. N.J.S.A. 34:15-87. It really is not involved here.

The workmen's compensation and employer's liability policy was written to satisfy the employer's statutory duty to insure against liability under Title 34, Chapter 15, Articles 1 and 2. N.J.S.A. 34:15-71, 72 and 78. Article 1 describes civil suits for employer negligence which are available to workers whose employment does not include an election for workmen's compensation. In such suits the employer may not raise the common law defenses of assumption of the risk or the fellow-servant rule. N.J.S.A. 34:15-2. Article 2 describes the elective compensation system

that is implicitly chosen to govern almost every modern employment.

The employer's duty to insure for Chapter 15 liability is, with irrelevant minor exceptions, universal. Failure to satisfy the duty may be criminal. N.J.S.A. 34:15-79. Policies are written to provide protection for the benefit of the covered workers, and may be enforced by them. N.J.S.A. 34:15-83, 84. The insurer is directly liable to them for benefits. N.J.S.A. 34:15-86. The policy may not lawfully restrict coverage to an exposure less in kind or amount than the employer's Chapter 15 liabilities. "No provision of such policy shall be construed to restrict the liability of the insurer to any stated business, plant, location or employment," unless the excluded business, plant, location or employment is separately insured. N.J.S.A. 34:15-87.

The policy involved here provides two separate coverages. Coverage "A" insures "all compensation and other benefits required of the insured by the workmen's compensation law." If the payment of damages awarded in this court to Christopher Carbonaro is "compensation required of the insured by the workmen's compensation law," then the plaintiff doubtless provides coverage. There is no relevant exclusion in the policy pertaining to Coverage "A".

Coverage "B" insures against "all sums which the insured shall become legally obligated to pay as damages" because of injuries in foreign countries to American workers and because of local injuries to any worker arising out of and in the course of his employment by the insured. Thus, Coverage "B" insures against a claim for work injuries for which the workmen's compensation law "requires" no compensation or other benefits. An example, one supposes, might be a claim by a "casual" employee. It may also provide coverage for "damages" as opposed to "compensation" required by Chapter 15. As to Coverage "B", there is a relevant exclusion. It bars policy application "with respect to any employee employed

in violation of law with the knowledge or acquiescence of the insured or any executive officer thereof."*fn1

There is nothing in Chapter 15 that permits the exclusion of illegally employed minors or others from policies insuring against Chapter 15 liabilities. Plaintiff's policy implicitly recognizes that fact by not seeking to exclude elective compensation claims by such employees. ...


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