Claim of Lane v. Cosmopolitan Mutual Insurance

Herlihy, P. J. This is an appeal from a decision of the Workmen’s Compensation Board, filed August 17, 1973, which found that the workmen’s compensation policy issued by respondent Cosmopolitan Mutual Insurance Company (hereinafter Cosmopolitan) to employer Suval Industries (hereinafter Suval) was canceled prior to claimant’s injury, and, hence, appellant Great American Insurance Company (hereinafter Great American) was solely responsible for claimant’s award. On or about April 9, 1969 Cosmopolitan was advised that its insured, Suval, was being merged into or absorbed iby the Whit-taker Corporation. The record contains a document which Whittaker caused to be delivered to Cosmopolitan which recited ■that it was a release of a policy and declared that the policy was to be canceled. It is undisputed that as of April 9, 1969 Great American was the insurance carrier for Whittaker and as of that date was extending coverage for the employees involved in the take-over of Suval. The claimant suffered compensable injuries on April 11, 1969. Cosmopolitan did not send the notice of cancellation of the former policy required by subdivision 5 of section 54 of the Workmen’s Compensation Law until about three and one-half months after the accident. Great American does not dispute the board’s finding that Suval Industries had been “ absorbed ” by Whittaker and the claimant’s claim for compensation names the employer as being a division of some other corporation. Upon the present record, there is evidence that the insured under Cosmopolitan’s policy had ceased to exist or do business and, accordingly, there is substantial evidence to support the factual finding of the board that as of the time of the accident there was no dual coverage and Great American was solely responsible as carrier. The general rule which would preclude relieving a carrier such as Cosmopolitan from liability for dual coverage when an accident occurs prior to the issuance of a notice of cancellation pursuant to subdivision 5 of section 54 of the Workmen’s Compensation Law is inapplicable upon the present set of facts which establish that not only was there a new insurance carrier with new coverage but that also the named insured had been absorbed by another entity. Great American’s claim of an estoppel arising out of a position adopted by Cosmopolitan in regard to an unrelated claim is without merit. The decision should be affirmed, without costs.