United States Fidelity & Guaranty Co. v. Industrial Commission

561 P.2d 1244, 114 Ariz. 472, 1977 Ariz. App. LEXIS 520
CourtArizona Supreme Court
DecidedFebruary 3, 1977
DocketNo. 1 CA-IC 1539
StatusPublished
Cited by4 cases

This text of 561 P.2d 1244 (United States Fidelity & Guaranty Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Fidelity & Guaranty Co. v. Industrial Commission, 561 P.2d 1244, 114 Ariz. 472, 1977 Ariz. App. LEXIS 520 (Ark. 1977).

Opinion

OPINION

FROEB, Chief Judge.

We are asked to determine in this case whether the petitioning insurance carrier must provide coverage for death benefits.

The covered employee, Gary R. Austin, died in an accident on September 7, 1974, while driving a truck for General Transportation, Inc. (referred to as “General”). His widow and six children surviving him thereafter filed a claim pursuant to appropriate provisions of the Workmen’s Compensation Act of Arizona.

[474]*474Several weeks before the accident, action was taken by the insurance brokerage company representing General to shift workmen’s compensation coverage from Continental Casualty Company/CNA (referred to as CNA) the respondent carrier, to United States Fidelity and Guaranty Co. (referred to as USF&G) the petitioner.

After proceedings involving considerable testimony and documentary evidence, the hearing officer decided that the CNA policy had been effectively cancelled and that the USF&G policy was in effect on the date of the accident. On review, we find sufficient evidence to support this determination and therefore affirm the award.

There is no question but that General was represented by its agent, Beaton-Susic Insurance Agency (referred to as the “Agency”) in the various dealings and transactions involving workmen’s compensation insurance. Accordingly, the Agency, at the outset, obtained from CNA a policy insuring General for its workmen’s compensation liability. It also arranged for insurance with CNA to cover other risks. The workmen’s compensation policy provided for a term from January 1, 1974 to January 1, 1975.

At some point during the Spring of 1974, CNA decided that the type of risk presented by General was not consistent with its underwriting philosophy and began discussion with Dave Beaton at the Agency concerning termination of the CNA policy. July 1, 1974, was chosen as the date when General’s insurance would be placed with another company. Concern apparently developed over whether the proposed cancellation of the CNA policy would be “short rate” or “pro rata.” It was agreed that cancellation would be pro rata, the effect of which would be to allow General the benefit of policy dividends as well as avoidance of a penalty premium. This was followed by efforts of the Agency to obtain coverage for General from USF&G to replace the CNA policy. The efforts were successful and USF&G agreed to issue the policy. The CNA policy was to be cancelled effective August 2, 1974, and the USF&G policy was to become effective the same date. A letter setting forth the agreement was written by Phil Susie of the Agency to CNA, dated July 31, 1974, and it stated:

Cancel this WC policy effective 8-2-74. USF&G is writing another WC policy effective 8-2-74. Per your agreement, this policy is pro-rate [sic] and eligible for the dividend. Send your worksheet on the cancellation.

The letter was replied to in writing by Gordon Reynolds of CNA on August 8, 1974, stating:

Phil, I have to have a signed lost policy release or the original to cancel.

Following this exchange, USF&G issued its policy, delivered it to the Agency and billed the Agency for the premium. The facts do not clearly show whether the Agency actually paid the premium or whether it delivered the policy in turn to General, but for our resolution of this case it is immaterial. On the other hand, the original CNA policy was never returned to CNA, nor was a lost policy release given.

The testimony indicates that as of August 2, 1974, it was the intention of the Agency and CNA to terminate coverage under the CNA policy and likewise it was the intention of the Agency and USF&G to commence coverage for workmen’s compensation liability.

Nothing further of significance occurred until September 7, 1974, when Gary Austin died as a result of the accident.

The events which followed the accident, coupled with the failure of General to return the CNA policy or provide a lost policy release, form the basis for the contention by USF&G that the CNA policy was never cancelled and that as a result the loss was covered by CNA.

Sometime between September 7, 1974 and September 30, 1974, Dave Beaton of the Agency returned from vacation unaware of what had transpired. He learned of the death of Gary Austin and found out [475]*475about the USF&G policy and the exchange of communications between Susie and Reynolds quoted earlier. He interpreted the Reynolds note of August 8 as rendering cancellation of the CNA policy ineffective without return of the original policy or a lost policy release. Apparently acting upon this assumption, Beaton returned the USF&G policy to USF&G on September 30, 1974, requesting that it be “cancelled flat” (meaning that no premium charge be made and that the policy be cancelled with the same effect as if it never had been issued).

Following this, the Industrial Commission notified CNA that its records showed coverage at the date of the accident by both USF&G and CNA. CNA responded that its policy had been cancelled. After this the Industrial Commission notified USF&G of the situation and it responded that its policy had likewise been cancelled.

In the course of several months following the accident, personnel of CNA, acting within various divisions of the company, undertook actions which USF&G contends confirm that the CNA policy was never cancelled. Between September 9 and 20, CNA’s claims adjuster reviewed the CNA files, decided that there was a workmen’s compensation policy in existence and undertook an investigation of the accident. In his report he mentioned that “there were no unresolved coverage questions,” a statement leaned heavily upon by USF&G to indicate that the CNA policy was still in effect. Other CNA personnel reviewing the company files also concluded that the policy had not been cancelled since they could find no documentation to this effect. It was not until later that CNA officials became informed of the July 31/August 8 exchange of writing between the Agency and CNA’s underwriting supervisor, Gordon Reynolds. Soon after, the company issued its notice of claim status denying the claim and asserting that its policy had been can-celled.

USF&G contends other events occurred which show that the policy was never can-celled. In November, 1974, CNA paid a workmen’s compensation claim of $16 for another employee of General arising from an accident on November 17, 1974. In February, 1975, CNA performed an “audit” of the workmen’s compensation policy, a routine procedure designed to determine what the final premium should be on the policy, that is, whether there would be an additional premium charged or a premium rebate given. As a result of the audit, it was determined that an additional premium was due the company on the basis of the full term of the policy from January 1, 1974 to January 1, 1975, and the Agency was billed accordingly, although there is no evidence that payment was made by General. The audit did not reflect a cancellation of the policy as of August 2, 1974.

In reaching his decision that the USF&G policy and not the CNA policy was in effect at the time of the loss on September 7, 1974, the hearing officer made various findings which we believe are supported by the evidence, and which, in turn, support his award.

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Cite This Page — Counsel Stack

Bluebook (online)
561 P.2d 1244, 114 Ariz. 472, 1977 Ariz. App. LEXIS 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fidelity-guaranty-co-v-industrial-commission-ariz-1977.