Maryland Casualty Co. v. Industrial Commission ( 1929 )

■ The following opinion was filed November 7, 1928:

Rosenberry, J.

It is the contention of the plaintiff here as it was in the court below and before the Industrial Commission that the determination of the question of whether or not a contract existed between the plaintiff insurance carrier and the employer, Pollock, was a nmtter over which the Industrial Commission had no jurisdiction.

Sec. 102.16 (1), Stats. 1925, provides:

“Any dispute or controversy concerning compensation under sections 102.03 to 102.34, inclusive, including any in which the state may be a party, shall be submitted to said industrial commission in the manner and with the effect provided in sections 102.03 to 102.34, inclusive.”

Secs. 102.03 to 102.34, inclusive, prescribe with exactitude who shall be liable for compensation, who is entitled to compensation, and the amount of compensation to be awarded, depending upon the injury.

By sec. 102.31 (1) it is provided:

“Every contract for the insurance of the compensation herein provided for, or against liability therefor, shall be deemed to be made subject to the provisions of sections 102.03 to 102.34, inclusive, and provisions thereof inconsistent with sections 102.03 to 102.34, inclusive, shall be void. Such contract shall be construed to grant full coverage of all liability of the assured under and according to the provisions of sections 102.03 to 102.34, inclusive, notwithstanding any agreement of the parties to the contrary unless the industrial commission has theretofore by written order specifically consented to the issuance of a contract of insurance on a part of such liability. No such contract shall be canceled or revoked within the policy period until a notice in writing shall be given to the industrial commission, fixing date on which it is proposed to cancel or revoke such contract, such notice to be served personally or by registered mail on the industrial commission at its office in the state capítol. No such cancellation or revocation shall be effective as against the claim of an injured employee until ten days after the service of such notice, unless the employer has obtained other insurance coverage for the protection of such employee, prior to the time of the injury for which claim is made. Every contract of insurance shall be written for the period of not less than one year.”

Sub. (2) of the section provides for the organization of mutual companies; sub. (3) for the examination of the books of the insurance carrier; and sub. (4) for reports. The statute nowhere confers upon the Industrial Commission the authority to hear any dispute or controversy except those concerning compensation under the act. A controversy as to whether or not a contract of indemnity exists between an employer and an insurance carrier cannot be said to be a controversy concerning compensation. A suit upon a policy of fire insurance does not relate to fire, — it relates to the agreement of the insurance carrier to pay the insured the amount of his loss. The extent of the fire merely measures the amount of the loss.

So here, as the commission observed, there is no controversy with regard to compensation, The only controversy in the case relates to whether or not the plaintiff company entered into a contract with the employer. In the absence of the workmen’s compensation act, there can be no question but that the plaintiff company would have a right to have the question of whether or not it was liable and, if it was liable, the amount of damages, determined by a jury trial. The claim which the employer asserts against the plaintiff company does not arise out of the workmen’s compensation act, but arises if at all out of a contract which the employer entered into with the plaintiff company. It being once established that an insurance carrier has entered into a contract with an employer, that contract is then subject to the terms of the workmen’s compensation act because the insurance carrier has consented that it shall be so. But to say that the Industrial Commission may determine, over the objection of the insurance carrier, that it has made a contract, and that because it has it is subject to the act, is to beg the entire question. If the act attempted to confer in express terms upon the Industrial Commission power to determine disputes and controversies arising between employers and insurance carriers, the act providing for no trial de novo upon any question, a very serious question as to the constitutionality of the act would be raised. We do not, however, meet that question in this case because the legislature has not attempted to confer such power or authority upon the commission. By the language of the statute the Industrial Commission may determine only those disputes and controversies concerning compensation under secs. 102.03 to 102.34, inclusive. It may be urged that the same contention might be made successfully respecting the right of the Industrial Commission to determine a dispute as to whether or not the relation of employer and employee exists. Such, however, is not the case. The basis of the workmen’s compensation act is that it is a regulation of the relation of employer and employee or master and servant. No dispute as to compensation can arise until it is found that the relation of employer and employee exists. It is considered, therefore, that controversies relating to that question are to be determined by the Industrial Commission under the provisions of sec. 102.16.

By the Court. — That part of the judgment appealed from is reversed, and the cause remanded with directions to the trial court to set aside the award as against the plaintiff company.

The following opinion was filed February 5, 1929: