No. 289 January Term, 1979, Appeal from the Order of Commonwealth Court of Pennsylvania in No. 1434 C.D. 1977 on Petition for Review of the Order and Opinion of June 30, 1977 of the Workmen's Compensation Appeal Board in Docket No. A-71844.
Joseph D. Shein, Philadelphia, for appellant.
David L. Pennington and Roger B. Wood, Philadelphia, for Phoenix Ins. Co.
Lowell A. Reed, Jr., Philadelphia, for Elsie M. Reed, Jr.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Wilkinson, J., did not participate in the consideration or decision of this case. Roberts, J., files a dissenting opinion in which Nix, J., joins. Mr. Chief Justice O'Brien dissents from the denial of reargument. Mr. Justice Roberts also dissents and would grant reargument for the reasons set forth in his dissenting opinion (joined by Nix, J.) filed in this matter.
This is an appeal from an order of the Commonwealth Court*fn1 which affirmed the Workmen's Compensation Appeal Board's reversal of a referee's award of benefits to the appellant, Laura E. Jarvis. The award constituted compensation for the death of Enos J. Jarvis (hereinafter Jarvis), appellant's late husband, who was fatally injured on January 13, 1969, while working within the scope of his employment. Jarvis' employer, Elsie M. Jarvis t/a John J. Jarvis, had, for seven consecutive years preceding the occurrence of the fatal accident, procured Workmen's Compensation insurance from the appellee, Phoenix Assurance Company of New York, through the latter's agent, the Emil Schurgot Agency (hereinafter Schurgot). Each year, near the expiration date of the annual insurance policy, Schurgot billed the employer for the following year's premium, and payment ensued. The final policy so procured expired on January 9, 1969, just four days prior to Jarvis' fatal accident. No renewal premium notice had been sent to the employer, since Phoenix Assurance
had terminated Schurgot as its agent. Notice of the termination, however, was not supplied to the insured, nor was it transmitted to the Commonwealth's Insurance Department, until subsequent to Jarvis' death.
Phoenix Assurance refused compensation benefits on grounds that the employer's insurance coverage had lapsed. Appellant asserts, however, that the insurer breached a duty to notify the insured of its intention not to offer a policy renewal, an omission for which liability allegedly accrued to the insurance carrier for losses sustained after expiration of the policy.
In Luther v. Coal Operators Casualty Co., 379 Pa. 113, 108 A.2d 691 (1954), this Court held that no such duty of notification rested upon the issuer of a Workmen's Compensation policy. The Court declined to hold that by reason of the insurer having renewed policies for successive years without request by the policyholder, an obligation arose to continue offering renewals from year to year indefinitely thereafter, or, if renewals were not to be offered, to inform the insured of the impending policy expiration and of the insurer's intention not to offer continued coverage:
[W]here an insurance agent or broker promises, or gives some affirmative assurance, that he will procure or renew a policy of insurance under such circumstances as to lull the "insured" into the belief that such insurance has been effected, the law will impose upon the broker or agent the obligation to perform the duty which he has thus assumed. But here no such promise or assurance was given, nor was there any arrangement between the ...