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Calderon v. Jimenez

January 14, 2003

JORGE URENA CALDERON, PETITIONER,
v.
ERFREN JIMENEZ, RESPONDENT-RESPONDENT, AND ELBERTH MORA, RESPONDENT-APPELLANT.



On appeal from the Board of Review, Department of Labor.

Before Judges Kestin, Eichen and Fall.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 11, 2002

The dispute in this workers' compensation matter is between the insurance carriers for the two respondents. After a trial on the issues, Judge of Compensation Boyan held that the respondents were dual employers obliged to share responsibility for the award made to petitioner, and that the policy issued by Hartford Underwriters Insurance Company (Hartford) to respondent Mora was effective. Harford appeals, arguing that the finding of dual employment was erroneous and that it cannot be held to have provided coverage to its putative insured.

The factual findings undergirding the dual employment determination are well supported by substantial evidence in the record and are, therefore, binding on appeal. See Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999); Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). The agency's expertise in applying dual employment criteria to the facts as found cannot be gainsaid. Ibid.

In deciding that the Hartford policy provided coverage to Mora, Judge Boyan held:

. . . Hartford contend[s] that they did not have coverage on the date of the accident. Their motion papers acknowledge that a policy with number 77WZNB6977 was issued, insuring Mr. Mora with an effective date of August 5, 1995 to August 5, 1996.

They contend that they canceled that policy, and their records - or the computer printout - show they attempted cancellation on October 13, 1995.

* * * I believe that the respondent, Hartford, did not use certified mail to effectuate the cancellation.

Petitioner's side has called my attention to the case of [Miney v. Baum, 170 N.J. Super. 282 (Law Div. 1979),] dealing with coverage of an auto policy, and holding that the statutory provisions for cancellation of a policy had to be followed, even where the only thing issued was a binder and where the full procedure of certified mail had not been resorted to. Judge Yanoff ruled that, under the circumstances, the coverage remained in effect despite the fact that there was no payment of initial premium.

Here, we have a similar situation except we don't have a binder. We have an actual policy. And there was a failure of the initial premium payment, the one issued Mr. Mora. He tendered a check for $500, but it was dishonored by his bank, so Hartford never collected a penny.

However, I feel that the Miney case is good authority and I should follow it and hold that the policy remains in effect unless and until canceled according to the statutory procedure, by certified mail.

Granted, it's a different policy, it's an auto policy in the Miney case, where we have a Workers' Compensation policy. But in both cases, we have insurance required to be maintained by statute, and the requirement of the statute is for the benefit of the injured party. So I think public policy considerations demanding compliance with the strict requirements for ...


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