Skuey v. Bjerkan , 173 Minn. 354 ( 1928 )

I agree that G.S. 1923, § 4288, imposes a duty to insure the entire risk unless the employer be exempted by the industrial commission. The section is directed, it seems to me, wholly at the insured and not at all at the insurer. To start with, it provides that "every employer" shall insure unless "such employer" be exempted by the commission. There follows a proviso that "any employer," with the approval of the commission, may exclude the medical and hospital benefits required by another section. Another proviso is that "an employer" conducting distinct operations or establishments may "insure or self-insure" every separate establishment or operation which may be determined by the commission to be a distinct and separate risk. (There is nothing there or elsewhere preventing an employer from insuring separate establishments or operations with as many insurers as there are risks. It is only when he desires to "self-insure" that he must go to the commission.) The next thought of the section is that "an employer" desiring to "self-insure" shall apply for such privilege. The next is that the commission may require further showings of any "such employer."

Finally, and showing that the only duty imposed by the section is upon the employer alone, we find that the concluding paragraph of § 4288, prescribing penalties for its violation, imposes them only upon "any employer who shall fail to comply with the provisions of this section." Neither there nor elsewhere is any penalty imposed upon the insurer who, knowingly or otherwise, covers a part only of the operations of the insured employer. Agreeing cordially with the idea that the compensation act, being remedial, should be liberally construed, I yet submit that to apply § 4288 as against the insurance carrier rather than against the employer alone is amending it rather than construing it.

That conclusion seems to me confirmed by § 4289, which in marked contrast with § 4288 is in the main directed at theinsurer. "Those writing such insurance" shall in every case be subject to its conditions. The first is that where the insurance is carried by certain kinds of companies, "then insofar as policies are issued on such risks they shall provide for compensation for injuries or death, according to the full benefits of part 2 of this act." However we view that language, it shows that the legislature has imposed certain conditions upon the insurer, and nowhere do we find that it has expressly imposed the condition that all of the operations of the insured shall be covered by the same policy or the same insurer. Nor is there negatived the idea that the insurer shall be at liberty to say what operations or establishments he will cover. Those insuring a given operation or establishment must promise "full benefits," but nowhere do we find anything requiring them to be responsible for an operation or establishment which is not only not within the language of the policy but expressly excluded.

Other conditions are imposed by § 4289. They are numerous, comprehensive, and enumerated. They do not include, expressly or by any implication that I can see, one that a given workmen's compensation policy shall cover not only the specific operations to which it attempts to limit itself but also any other in which the employer may engage during the period of the policy.

It is competent for the legislature to condition the business of workmen's compensation insurance in any reasonable manner. It may go a long way in prescribing the kind of contract that shall be used. It may do as has been done in the field of fire, life and accident insurance and prescribe substantially all or at least a goodly part of the provisions of the policy. But, except to the extent that the field is covered by § 4289, it remains untouched by legislative restriction. It should follow that, except as so restricted, the coverage of a compensation policy may be limited to the precise operations or establishments expressly insured. It does not invalidate that conclusion to invoke the duty imposed by § 4288 upon the employer to insure all his operations or establishments. That duty is complied with if he covers one risk with one insurer and another with a second. And if he does not cover at all a part of his risk, he and not the insurer is the wrongdoer.