Appeals from the Order of the Workmen's Compensation Appeal Board in case of Robert Davenport, Deceased, Geni Davenport, Widow, v. Natural Marble & Onyx Company, No. A-89807.
Charles W. Craven, with him, John S. Tucci, and Maria Zulick, Marshall, Dennehey, Warner, Coleman and Goggin, for petitioner/respondent, American Mutual Insurance Company.
William R. Hourican ; Of Counsel: Frumkin & Manta, for petitioner/respondent, Natural Marble & Onyx Company.
Robert M. Abramson, Abrams, Abramson & Tabb, for respondent, Geni Davenport.
President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
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Before this Court for review in this workmen's compensation case is the order of the Workmen's Compensation
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Appeal Board (Board) affirming a referee's decision and order assessing workmen's compensation liability for benefits against American Mutual Insurance Company (Insurer) and Natural Marble & Onyx Company (Employer) in favor of Claimant, Geni Davenport, as widow of Robert Davenport, deceased employee (Decedent), including additional compensation payable with regard to two children of Robert and Geni Davenport. Separate appeals were taken by Insurer and Employer.*fn1 We will affirm.
Employer, an Illinois company performing marble work in Philadelphia and using its own Illinois employees, was required by a local union to add two local employees; Leslie Roberts, Jr. went to work on October 8, 1979, and Robert Davenport on October 9, 1979. At the end of the work day on October 9, 1979, Decedent then aged 34, suffered brain injuries in a fall which caused his death on October 10, 1979. Questions presented for answer by us include the following: (1) does Insurer's coverage of Employer under Illinois' law provide coverage in Pennsylvania for the two Pennsylvania employees, particularly Decedent; (2) is there substantial evidence to support the referee's finding that Decedent's death resulted from injury in the course of his employment; (3) is there substantial evidence to support the referee's finding and conclusion of law that Claimant was an eligible widow of Decedent; (4) was the wage rate computed as Decedent's average weekly wage for compensation purposes correctly determined.
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We will address these questions in the order in which they are stated.
Insurer contends that Illinois law governs as to coverage, while the Employer in its separate brief maintains that Pennsylvania law should control. We conclude that American Mutual is responsible to pay benefits as awarded by the referee and affirmed by the Board*fn2 and we agree that this result was properly reached under Illinois law. We note in passing, however, that the Illinois Insurer here may also be liable for workmen's compensation benefits under Pennsylvania law.*fn3
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Under Illinois law, Employer achieved basic coverage by direction of the Illinois Industrial Commission under its Assigned Risk Plan.
Such assignment under Illinois law is mandated when an employer's request for coverage is declined by two insurers. 73 Ill. Stat. § 1083.
Section 1083(a) of the Illinois Insurance Code, provides in relevant part as follows:
When it is found by the Commission that the application of an employer for compensation or occupational diseases insurance has been rejected by 2 carriers and that such employer is entitled to insurance, the Commission shall designate a carrier which shall be obligated to issue forthwith a standard policy, including upon request of the insured coverage, commonly referred to as the all-states endorsement for unexpected liability arising in a state where operations were not expected at the time the policy was written. . . (Emphasis supplied.)
As will be perceived, insurance coverage is mandated in this case for Pennsylvania, provided only that there be a "request of the insured [for] coverage, commonly referred to as the all-states endorsement for unexpected liability arising in a state where operations were not expected at the time the policy was written . . ." The issue, therefore, is purely whether there was a "proper request of the insured" for the all-states endorsement which would include Pennsylvania coverage, and whether or not that request, when honored, willingly or unwillingly, would result in liability for an injury occurring prior to the date of the all-states endorsement.
The all states endorsement provides, in part:
1. If the insured undertakes operations in any state not designated in Item 3 of the declarations,
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other than [Nevada, North Dakota, Ohio, Washington, West Virginia or Wyoming], Coverage A applies to such operations (Workmen's Compensation Coverage).
5. The insured shall give notice to the company before or within a reasonable time after the commencement of such operations, but failure to give notice shall not invalidate the insurance. The insured shall, if requested by the company, take whatever action is necessary to come within the workmen's compensation and occupational disease laws of such state.
There was testimony which the referee could accept that on either October 8, 1979 or October 9, 1979, Employer requested the all-states endorsement by application to its insurance agency and that the agency wrote to Insurer on October 10, 1979 requesting same, effective as of September 19, 1979. It is also apparent that under the standard policy, coverage was ...