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Cardinale v. Santa Mecca

Decided: February 4, 1980.

FRANK CARDINALE, PETITIONER-RESPONDENT,
v.
MRS. ANDREW SANTA MECCA, RESPONDENT-RESPONDENT, AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, RESPONDENT-APPELLANT



Bischoff, Botter and Furman. The opinion of the court was delivered by Furman, J.s.c. (temporarily assigned).

Furman

[175 NJSuper Page 9] This appeal is from a preliminary ruling by the judge of workers' compensation that a workers' compensation insurance policy issued by Employers Mutual Liability Insurance Company

of Wisconsin to Mrs. Andrew Santa Mecca was in force and effect at the time of an employment connected injury to Frank Cardinale. Mrs. Santa Mecca was the owner of a single taxicab. The judgment awarding workers' compensation benefits is not otherwise challenged on this appeal.

Respondent insurer contends that it had effectively cancelled Mrs. Santa Mecca's policy. Its notice of cancellation as of November 21, 1969 for non-payment of premiums was mailed by certified mail, return receipt requested, on November 6, 1969 to Mrs. Santa Mecca's address in Newark, as stated on her policy application in March 1968. According to Mrs. Santa Mecca's testimony she had moved from that address to an address in Belleville prior to the mailing of the notice of cancellation but had left a forwarding address. The employment connected injury occurred on January 27, 1970.

N.J.S.A. 34:15-81 provides that notice of cancellation of a workers' compensation insurance policy must be given by registered mail. Pursuant to N.J.S.A. 1:1-2 any statutory reference to "registered mail" includes "certified mail." See Pacific Discount Co. v. Jackson , 37 N.J. 169 (1962), holding that mailing by certified mail rather than by registered mail was not repugnant to the statutory intent of the now repealed Uniform Conditional Sales Act.

The judge of workers' compensation ruled that, although notice of cancellation by certified mail would have complied with N.J.S.A. 34:15-81, respondent insurer nevertheless failed to comply with the statute because of the additional requirement of a return receipt, which, he concluded, lessened the possibility of receipt of the notice of cancellation.

We reject that conclusion. The factual reliance of the judge of workers' compensation was on testimony of a Newark postal administrative manager, who answered a question on direct examination that receipt of certified mail, return receipt requested, was less likely than receipt of certified mail "because you're asking for the signature of the addressee."

That testimony is contrary to the facts in the record. Delivery of respondent insurer's notice of cancellation required only the signature of someone at the premises, not exclusively the signature of the addressee Mrs. Santa Mecca. Delivery restricted to the addressee only would have been available for an extra fee, but no extra fee was paid.

Certified mail not requiring a return receipt is left at the designated address. Certified mail, return receipt requested, is returned to the post office and marked unclaimed, if no one accepts delivery by signing the return receipt. After ten days a second attempt is made to deliver it and, if again unsuccessful, after another five days the letter is returned to the sender with a notice that it was unclaimed. The notice of cancellation to Mrs. Santa Mecca's address in Newark was marked unclaimed and returned to respondent insurer.

In addition, if no one accepts delivery of certified mail, return receipt requested, a call notice is left at the designated address advising the addressee that certified mail is being held for him at the post office. Presumptively that practice was followed after the futile attempt or attempts to deliver respondent insurer's notice of cancellation.

Contrary to the judge below we discern on the record no significant difference between the likelihood of delivery of certified mail and of certified mail, return receipt requested. Respondent insurer was entitled to rely upon reasonable attention to her mail by the insured Mrs. Santa Mecca, including her compliance with the notice to call for mail held at the post office. Assuming a correct address, the notice of cancellation would have reached Mrs. Santa Mecca with equal likelihood by certified mail left at her premises or by certified mail, return receipt requested, signed for by herself or by someone else at the premises or picked up by her at the post office in response to a call notice.

Under the factual circumstances Mrs. Santa Mecca had moved and left a forwarding address prior to the mailing of the notice of cancellation. The ...


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