Ban & Kariya Co. v. Industrial Commission

GIDEON, C. J. A review is sought by this proceeding of an award of the Industrial Commission. Rinjiro Kariya was accidentally killed while in the course of his employment in Weber county, this state, on December 23, 1923. At the time the deceased was an employee of Ban & Kariya Company, a Utah corporation hereinafter desig *303 nated employer. The employer was subject to the Workmen’s Compensation Act of Utah, and had a policy of insurance from the Industrial Commission whereby its employees were entitled to workmen’s compensation insurance with the state insurance fund. Such proceedings were had before the Industrial Commission that on November 9, 1925, the commission, by its order, directed compensation to be paid by Ban & Kariya Company or the state insurance fund to the widow of deceased and three minor children. On December 7, 1925, a petition for review of the commission’s award was filed with the clerk of this court and writ issued. The caption of the petition is: “Ban & Kariya Company, a Corporation, and the State Insurance Fund, Petitioners, v. Industrial Commission of Utah and Mrs. Teruna Kariya, for Herself and as Guardian of Three Minor Children, Sachiko Kariya, Mitsuru Kariya, and Mimito Kariya.” The petition is signed by “Bagley, Judd & Ray, Attorneys for Petitioners.” Thereafter the employer filed its motion to dismiss the petition for review so far as it is concerned (a) because the employer did not authorize the filing of the petition for review and did not employ counsel to file said petition; and (b) because the employer is satisfied with the award of compensation made by said commission and payable from the state insurance fund. The motion to dismiss is supported by the affidavit of one Utaro Kariya, vice president and general manager of the employer company. The widow and minor children have interposed a motion to quash the writ of review upon the grounds that the petition does not state facts sufficient to entitle petitioners, or either of them, to a review of the proceedings before the Industrial Commission or a review of the award made; and, further, that the state insurance fund has not legal capacity to make such petition or to have reviewed by this court the award of compensation made. Nothing is found in the record contradicting the affidavit in support of the motion to dismiss the petition for review on behalf of the employer. The order of the commission is *304 directed against both the employer and the state insurance fund. It definitely appears from the motion on behalf of the employer and the affidavit made by its vice president that the employer is satisfied with the order of the commission as made. Apparently, no good reason therefore exists why this motion should not be granted. The motion is therefore granted, and the petition for review made on behalf of the employer dismissed. The attorneys who prepared and presented the petition for review were employed by Mr. Charles Caine, designated the manager of the state insurance fund. The petition is in the usual form of petitions filed in this court for review of awards made by the Industrial Commission payable from the state insurance fund. It has been the uniform custom to couple the employer with the State Insurance Fund in petitions filed in this court for review of awards wherein the award was to be paid by the state insurance fund. The attorneys make no claim or pretension of appearing as attorneys for anyone except the state insurance fund. No criticism, therefore, can or should be made of the attorneys who appear in the petition as attorneys for petitioners. The motion to dismiss the writ of review on behalf of the employer and the granting of that motion can in no way deny to the state insurance fund the right to have the award of the commission reviewed if the state insurance fund is a “party affected thereby” and has the legal capacity to maintain this proceeding. It may be conceded that if the state insurance fund is a party to the proceeding before the commission it is and would be affected by the award made by the commission in this case. Whether the so named state insurance fund is in reality a party or can be authorized to complain of the award made by the commission is the serious question presented by this record. The state insurance fund is not a body corporate, public, quasipublic, or private. Can it be said to have any legal existence as a distinct entity independent of and not as a part of the industrial commission ? The sec *305 tions of our statutes creating the state insurance fund in no way attempted to clothe such fund with any right distinct, independent or separate from the Industrial Commission. It is not authorized to sue or be sued. It is not clothed with any power to contract or be contracted with. The policies or contracts of insurance issued to the employers are not made by or with the fund, but are made by and with the Industrial Commission. The rate of premiums to be paid by the employers insured in the state insurance fund are fixed by the commission. Comp. Laws Utah 1917, § 3095, being one of the sections of the Workmen’s Compensation Act, provides: “There is hereby created a fund, to be known as the state insurance fund, for the purpose of insuring employers against liability for compensation under this title, and of assuring to the persons entitled thereto the compensation provided by this title. * * * Such fund shall be administered by the commission without liability on the part of the state beyond the amount of such fund. Such fund shall be applicable to the payment of losses sustained on account of insurance and to the payment of compensation and of expenses in the manner provided in this title.” Section 3096 of the same compilation is: “It shall be the duty of the commission to conduct the business of the state insurance fund, and it is hereby vested with full authority over the said fund, and may do any and all things which are necessary or convenient in the administration thereof, or in connection with the insurance business to be carried on by it under the provisions of this title.” Section 3098 is: “The commission may, in its official name, sue and be sued in all the courts of the state, in all actions or proceedings arising out of anything done or suffered in connection with the state insurance fund or business relating thereto. * * * Section 3099, as amended by Laws Utah 1919, c. 63, provides : “The commission may, in its official name, make contracts of insurance as herein provided and such other contracts relating to the *306 state insurance fund as are authorized or permitted under the provisions of this act. * * *” Section 3100 authorized the commission to act through proper deputies and to delegate to such deputies such powers as it deems necessary or convenient. Among the powers authorized to be delegated is the right to enter into contracts of insurance, to make agreements for the settlement of claims for compensation against said fund and, also, to determine to whom and through whom payments of such compensation' shall be made. Power may also be given its deputies to contract with physicians, surgeons and hospitals for medical and surgical treatment, etc. It is provided in section 3101 that: “Every employer insuring in the state insurance fund shall receive from the commission a contract or policy of insurance in a form to be approved by the state commission.” It is provided in section 3105 that the commission shall “adopt rules and regulations with respect to the collection, maintenance, and disbursement of the state insurance fund.” Section 3106 provides: “The state treasurer shall be the custodian of the state insurance fund, and all disbursements therefrom shall be paid by him upon vouchers authorized by the Industrial Commission of Utah and signed by a member of the commission and the secretary thereof.” Under the provisions of section 3108 the commission is given power to invest any of the surplus or reserve belonging to the state insurance fund. The securities are designated in which such fund may be invested. The statutes above quoted and referred to contain all of the provisions of the Workmen’s Compensation Act relating to the creation, management, and control of the state insurance fund. It clearly appears from these sections that the Industrial Commission is charged with the duty of managing and administering this fund. *307 It is provided in section 3100 that the commission may-delegate its powers to a deputy or deputies. Nevertheless, the acts of this deputy or these deputies are merely the acts of an agent or agents of the commission, and, outside of the powers granted, they have no right or authority to control or administer the fund or to bind the fund or the commission in any way respecting the fund. The Industrial Commission having control and management of that fund as provided in the sections quoted and referred to, it would be both unusual and illogical for a mere department or an agency of the commission to deny the commission authority to make any award payable from the fund, and to have that order of the commission reviewed at the instigation and on behalf of such agency. The most that can be said of the state insurance fund is that it is an arm or department of the machinery set up by the Workmen’s Compensation Act, the administration of which is given to the Industrial Commission. The Legislature of 1921 (Laws 1921, c. 67), amended section 3148 of the Workmen’s Compensation Act. The same section had been amended by the Legislature of 1919 (Laws 1919, c. 63). In the amendment of 1921 it is provided that: “Within thirty days after the rendition of the decision on the rehearing, any party affected thereby including the state insurance fund, may apply to the Supreme Court of this state for a writ of certiorari or review * * * for the purpose of having the lawfulness of the original award or the award on rehearing inquired into and determined.” That amendment is relied upon as authority for the state insurance fund to petition this court for a review of the order made by the commission affecting the fund. The effort of the Legislature by the amendment of 1921 to give the state insurance fund the right to appear as a party to have an award of the Commission reviewed must be held to be nugatory and of no effect. We have endeavored to point out that the Legislature has in no way attempted to make, nor has it made, the state insurance fund an independent entity *308 disassociated from the Industrial Commission. The fund is not given any of the powers usually provided or deemed necessary for the functioning of a body corporate. In other words, the state insurance fund as a legal entity has no existence. The very statute providing for the fund gives the administration of it to the Industrial Commission. No intimation is found in the Workmen’s Compensation Act anywhere that any one save the Industrial Commission has any power or right to control the distribution of the fund or direct in what manner it shall be invested or appropriated. It may be, and it is, desirable that some one interested in the state insurance fund, or some one “affected by” the awards of the commission payable from the fund, should have the legal right to have the award reviewed by this court; nevertheless it clearly appears that the Legislature by the 1921 amendment did not make of the state insurance fund a body corporate or otherwise empower or authorize it to become a party to any litigation. Any proceeding affecting the state insurance fund must be prosecuted or defended by the commission, the administrator of the fund, or by some one who can be said to have an interest in the fund or be affected by any order made concerning the fund. It is not necessary or desirable to here determine who is or may be a party interested in or affected by an award payable from the state insurance fund. We are only determining that the state insurance fund is not such a party. Other actions for review have been instituted in this court wherein the state insurance fund was named as one of the petitioners. In each of those cases, with one exception, the state insurance fund was joined as a petitioner with some one legally entitled to maintain the action for review. In State Insurance Fund v. Industrial Comm., 61 Utah, 579, 217 P. 249, the state insurance fund appeared as a lone petitioner. The petition in that matter was dismissed on other grounds, and the cause was not considered upon merits. The question involved in this proceeding was not considered. In none of the applications for writs of review *309 wherein the state insurance fund was named as one of the petitioners was the question here presented argued, or considered by the court. The motion of the employer to dismiss the proceeding on its behalf having been granted, and it having been determined that the state insurance fund has no legal right to maintain this action for review, it necessarily follows that the motion of the defendants, widow and minor children, to quash the writ of review and dismiss the petition must be granted. Such is the order. THURMAN, CHERRY, and STRAUP, JJ., concur.