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

Insurance: Employer’s liability: Indemnity for payment under workmen’s compensation law: Estoppel. 1. In an insurance policy providing for indemnity against loss from the liability imposed by law on account of accidental injuries suffered by employees of the insured in certain places, including the state of Ohio, it was stipulated that "unless specifically indorsed hereon, this policy does not cover any obligation . . . imposed upon the assured by any workmen’s compensation . . . law.” A workmen’s compensation law previously enacted in Ohio went into effect after the policy was issued. The insurer knew and the assured was ignorant of that law, but no deception was charged. Held, that the insurer was not estopped to deny its liability in respect to a payment which the insured was obliged to make to an employee under said Ohio law. 2. Since the premium paid on said policy at no time included a charge for indemnity against loss imposed by workmen’s compensation laws, the retention of the premium by the insurer could not operate to invalidate the stipulation excluding such indemnity. 3. 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.

Appeal from an order of the circuit court for Manitowoc county: Michael Kir wan, Circuit Judge. This is an action brought by the plaintiff tO' compel the defendant to indemnify the plaintiff on a contractor’s employer’s policy. In this contract, dated June 28, 1913, the defendant agreed to indemnify the assured “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting the'refrom, accidentally suffered by any employee of the assured while engaged in the occupation and at the places mentioned” in the policy and occurring within the year from the date of the policy and ending June 28, 1914. The policy covered 'work performed on plaintiff’s dredges and tugboats operating on the Great Lakes and the rivers in Wisconsin, Ohio, and Pennsylvania. One of the provisions of the policy reads as follows: “Unless specifically indorsed thereon, this policy does not cover any obligation assumed by or imposed upon the assured by any workmen’s compensation agreement, plan, or law.” On September 1, 1913, an indorsement was made in writing on the policy that “this policy is extended to cover the liability of the assured” under the Wisconsin workmen’s compensation law. The defendant claims that under the provisions of the policy it is not obligated tO' plaintiff upon any liability imposed by the workmen’s compensation act of Ohio, and hence is not liable to indemnify plaintiff for any loss sustained by plaintiff under such compensation act. The complaint asserts that on June 15, 1914, at Cleveland, Ohio, while the policy was in force, an employee of the plaintiff, Michael Tinker, was accidentally drowned while in discharge of his duties and while performing work for the plaintiff mentioned in the policy; that claim for compensation was duly filed by Tinker’s mother and his legal representatives with the industrial commission of Ohio-; that the commission made its award adjudging that the plaintiff pay as compensation on said claim $2,143.33 and also $95 funeral expenses; that plaintiff has paid this award in full; that defendant refused to defend against the claim and to pay the award or any part thereof and refused to indemnify plaintiff for having paid the same. The complaint further alleges that there was full compliance on the plaintiff’s part with every requirement of the policy essential to recovery if, at the time of its occurrence, the accident in question was covered by the policy; that the workmen’s compensation act of Ohio went into effect January 1, 1914, long after the date of the policy; that the defendant knew of the law from the time of its passage, while the plaintiff had no knowledge thereof prior to said accident, and that defendant up to the time of said accident never informed plaintiff of the existence of such a law and never canceled the policy nor returned or offered to return any part of the premium paid therefor; that while the policy was executed and delivered at Two1 Rivers, Wisconsin, the ■place of plaintiff’s location and office and principal business, the plaintiff was assured by defendant’s local agent and its general agents in Milwaukee that the policy covered all.accidents to plaintiff’s employees in Ohio; that after the accident defendant’s general agents in Milwaukee requested plaintiff to send one of its officers to' Milwaukee to' make proof of loss on account of the accident; that plaintiff did so, thereby incurring expenses of $8 in making such proof, which was sent to defendant, and plaintiff was assured by defendant’s agents that the defendant would indemnify plaintiff for the accident; .that in 1913 and 1914 and thereafter it was the general custom in Wisconsin for corporations which issued such indemnity policies to give notice immediately to the assured of any fact or event which would change or nullify such a policy, and that plaintiff relied upon that custom, but that defendant never gave plaintiff notice that the policy had been invalidated by any law of Ohio or that defendant would not perform the contract on its part. The defendant demurred to the complaint on the'ground that it appears on the face of the complaint that the same does not state sufficient facts to constitute a cause of action. The trial court overruled the demurrer, from which order appeal is taken by the defendant to this court.