NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1965-04T21965-04T2
ANDREA ONGARO,
Petitioner-Respondent,
v.
COUNTRY FLOORING ENTERPRISES,
Respondent-Respondent.
_______________________________________
Argued November 30, 2005 - Decided January 17, 2006
Before Judges Weissbard, Winkelstein and Sabatino.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, CP No.99-027072.
Julie Colin argued the cause for appellant
Fireman's Fund Insurance Company (Hill Wallack, attorneys; Ms. Colin, on the brief).
Alan B. Baybick argued the cause for respondent Country Flooring Enterprises.
Peter C. Harvey, Attorney General, attorney for respondent Uninsured Employer's Fund (Michael J. Haas, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on letter in lieu of brief).
The opinion of the court was delivered by
SABATINO, J.S.C., (temporarily assigned).
This appeal calls for us to consider whether a workers compensation insurer sufficiently complied with 175 N.J. Super. 8, 11-12 (App. Div. 1980)(certified mail deemed to satisfy the requirement of "registered mail" for cancellation notices under N.J.S.A. 34:15-81 also requires the insurer to transmit a "like notice" to the Department of Banking and Insurance, along with a certified statement verifying that the notice to the insured called for by subsection (a) has been issued. See N.J.S.A. 34:15-81, dates back to 1917, no reported case law identifies the elements of the "like notice" called for under subsection (b). Nor have counsel pointed us to any germane legislative history on that narrow issue.
As we understand it, from our reading of the statute as a whole and also from our colloquy with counsel at oral argument, the regulatory purpose of subsection (b) of the statute is to alert the State that an employer within New Jersey has caused its workers compensation coverage to lapse. Because such coverage provides employees in our State with an important safety net for workplace accidents, the Department has good reason to track which employers have active compensation coverage, and which ones do not. Such coverage through an insurance policy, or through a self-insurance fund, is mandatory for most employers in New Jersey. See N.J.S.A. 34:15-71 and -72. We were advised at oral argument that at times the Department conducts inspections of employers to assure that employers maintain such coverage, and that they promptly obtain replacement coverage when their compensation policies are canceled.
The question before us is whether the attempted "like notice" furnished by Fireman's Fund to the Department on April 7, 1999 comported with the statute in a manner sufficient to enable the State to carry out these regulatory objectives. We believe that it did.
We conclude that the two incorrect dates contained in the insurer's notice to CRIB do not amount to a material deviation from the "like notice" requirements of subsection (b). No one has argued to us how those inaccuracies did or could have affected any regulatory action by CRIB or by the Department of Banking and Insurance, or any decisions by third parties who might have checked CRIB's records.
Respondent Country Flooring argues that "like notice" under 36 N.J. 309, 323 (1962)(courts should construe statutes realistically and sensibly, rather than mechanistically); Scaffidi v. Horvitz, 343 N.J. Super. 552, 558 (App. Div. 2001)(codified provisions must be construed "in a sensible manner that furthers the underlying purpose of the statute"). Bearing those functional purposes in mind, we must respectfully part company with the compensation judge's rigid interpretation of subsection (b).
The errors in the April 7, 1999 document appear to be purely clerical in nature. Neither error reasonably could have thwarted the Department from recognizing that Country Flooring had lost its compensation coverage with Fireman's Fund. There was no deception or obfuscation. The remainder of the document accurately contained more than ample information to put the Department on notice of Country Flooring's policy cancellation.
First, we do not see how the misstated effective (not cancellation) date listed for Country Flooring's policy in the CRIB notice made any difference here. A logical reading of the form is that the "December 1999" reference was simply a typographical error for "December 1998." Otherwise, the form submitted to CRIB in April 1999 literally would have been canceling a policy that did not yet even exist.
Second, the CRIB form's mistaken recitation of a later mailing date for the employer's cancellation notice, i.e., March 25 instead of February 19, caused no prejudice. Perhaps we would be concerned if an earlier date had been recited and the insured employer had been deprived of its full ten days under the statute to cure the non-payment of its premium. But that was not the case here.
In sum, because we do not equate "like notice" under N.J.S.A. 34:15-81 provides, in pertinent part, as follows:
Any contract of insurance issued by a stock company or mutual association against liability arising under this chapter may be canceled by either the employer or the insurance carrier within the time limited by such contract for its expiration.
No such policy shall be deemed to be canceled until:
At least ten days' notice in writing of the election to terminate such contract is given by registered mail by the party seeking cancellation thereof to the other party thereto; and
Until like notice shall be filed in the office of the commissioner of banking and insurance, together with a certified statement that the notice provided for by paragraph "a" of this section has been given; and
Until ten days has elapsed after the filing required by paragraph "b" of this section has been made. . . [.]
Neither Ms. Ongaro, nor the Attorney General as counsel to the Department of Banking and Insurance, took a position before us on this appeal.
(continued)
(continued)
9
A-1965-04T2
January 17, 2006
APPROVED FOR PUBLICATION
January 17, 2006
APPELLATE DIVISION
