Two Rivers Dredge & Dock Co. v. Maryland Casualty Co.

Siebecker, J. The trial court held that the defendant is estopped from taking advantage of the provision of the policy excluding indemnity for obligation imposed on plaint [99] iff by any “workmen’s compensation agreement, plan, or law.” This ruling by the court is based on the grounds that, from the time its contract was made, the defendant knew, and the plaintiff was ignorant of, the existence of the Ohio workmen’s compensation law, and therefore plaintiff believed that it was fully indemnified against loss imposed by law upon it for damages resulting from accidents suffered by its employees in the state of Ohio. It is to be borne in mind that the complaint does not charge that the plaintiff was deceived into making the agreement that the policy did not cover any obligation assumed or imposed by any workmen’s compensation law. The complaint admits this stipulation was a part of the policy as accepted by it, but claims that the existence of such Ohio law resulted in destroying all indemnity it had originally secured by the policy, and that its ignorance of such fact, which was known to defendant, estops defendant from relying on this stipulation in the policy. It is not correct to say, as the trial court seemingly held, that the concealment and assurances of defendant’s agents that the policy as written covered all accidents to its employees in the state of Ohio affects the validity of this stipulation in the policy. The plaintiff understood and accepted this stipulation in the policy. There is nothing in the conduct of the parties to justify the conclusion that the plaintiff was led to believe that this stipulation did not cover any obligation imposed on plaintiff by the Ohio workmen’s compensation law. To enforce an estoppel as claimed by plaintiff would not only nullify a part of the policy agreed to by both parties, but would also operate to' extend the contract to a liability which the parties understood and expressly agreed should not be covered by the contract. As was stated in a recent case in this court: “The objection here does not go to the validity of the policy, which might be overcome by the larger evident intention that indemnity was intended, nor to a forfeiture or loss [100] of a right or claim thereunder, but concerns only the scope of the insurance. . . . There might be waiver of a forfeiture or of a breach of contract, but waiver as a ground for extending the scope of a written contract beyond the usual and ordinary meaning of the language employed would be quite a novelty.” Rosenthal v. Ins. Co. of N. A. 158 Wis. 550, 149 N. W. 155. We are cited to Welch v. Fire Asso. 120 Wis. 456, 98 N. W. 227, and other authorities in this court on which the trial court placed reliance in sustaining the complaint. These authorities deal with instances where stipulations in policies were held ineffective upon the ground that the act and conduct of the parties showed an intent that indemnity was intended to be given though such provision expressed a contrary intent and where forfeitures and loss of rights thereunder had been waived by the acts of the insurer. “While a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all.” McCoy v. Northwestern M. R. Asso. 92 Wis. 577, 585, 66 N. W. 697. The contention that retention by defendant of the full premium paid for the policy for the period of one year operated to invalidate the provision excluding indemnity of liabilities imposed by the workmen’s compensation law of Ohio, is not well founded, since the premium was paid for indemnity provided by the terms of the policy, which persisted tO' the end of the policy period, and at no time included a charge for indemnity against loss imposed by the workmen’s compensation laws. It follows that it appears upon the face of the complaint that it does not state facts sufficient' to constitute a cause of action. By the Court. — The order appealed from is reversed, and the cause remanded to the circuit court with direction to enter an order sustaining the demurrer.