Appellate Division affirms denial of insurer’s motion to dismiss for lack of coverage and affirms finding that petitioner was in course and scope of employment.
The petitioner was the owner and employee of the respondent, a structural steel company. It was noted that about 60% of the petitioner’s work involved traveling for projects and preparing estimates. The petitioner would decide what vehicle to use and which routes to get to job sites. An insurance policy, which included workers’ compensation coverage for the petitioner, was obtained from Hartford, covering October 13, 2015, to October 13, 2016.
Hartford alleged sending a renewal notice to the petitioner on August 19, 2016, which the petitioner denied receiving. His insurance broker contacted him on September 16, 2016, advising of the pending policy expiration. On September 29, 2016, the petitioner responded that he wanted to exclude coverage for himself for the upcoming period. The Hartford policy expired before the broker finalized the changes, and on October 14, 2016, the petitioner contacted the broker and agreed to call later that day.
On the same day, the petitioner was working for the respondent, driving a flatbed truck, for a project in Hightstown, New Jersey. He completed some other work activities and dropped off the truck at his shop in Trenton, New Jersey. As it was a nice day, he decided to use a friend’s motorcycle to travel to Hightstown to prepare an estimate. He elected to take a longer route through Pennsylvania to enjoy the weather. The workers’ compensation judge found that the petitioner proceeded to the project location shortly after entering Pennsylvania, i.e., back on a work-related mission, before the subject accident.
The petitioner filed a workers’ compensation claim in March 2017, alleging various injuries from a work-related vehicular accident on October 14, 2016. In May 2017, Hartford filed an answer denying coverage. In December 2017, a motion to dismiss for lack of coverage was filed, alleging the policy had expired and had not been renewed prior to the date of the accident. The petitioner argued Hartford’s non-renewal did not comply with the statutory requirements of N.J.S.A. 34:15-81.
Discovery proceeded, and on March 5, 2019, a pre-trial memorandum was completed, noting it would be bifurcated on the issue of coverage, as well as witnesses to be called. Hartford was given additional time to submit any new information, with the judge noting this would be given priority due to the petitioner’s grave injuries, including a below-knee amputation.
In May 2019, Hartford sought to withdraw its motion without prejudice and to file a new motion to determine the petitioner’s coverage status, which the petitioner opposed. Trial on the coverage issue began, and Hartford was unable to produce any specific witnesses about non-renewal of the policy. As such, the judge denied Hartford’s original motion to dismiss with prejudice, holding coverage to be in effect, and rejected Hartford’s attempt to withdraw the coverage motion.
After coverage was decided, another judge presided over the hearing where the respondent argued the petitioner was not in the course of his employment. In the April 2022 written decision, the judge found the petitioner was in the course and scope of employment and, as such, his injuries were compensable. The judge found that the petitioner’s testimony credible and that he was on his way to a project location and did not intend to stop for any errands in between. The order of judgement was entered in August 2022.
Hartford appealed, arguing the judge’s May 2019 orders violated its due process rights and that the petitioner was not in the course and scope of his employment. The Appellate Division declined to consider the due process argument because it was not raised below, and rejected Hartford’s argument about course and scope of employment. Based on the deferential standard of review for findings of fact, the Appellate Division affirmed, noting the record supported the judge’s findings.
What’s Hot in Workers’ Comp, Vol. 27, No. 11, November 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.