Smith v. American Employers' Insurance

Kenison, C. J.

dissenting: So far as appears from the briefs of counsel and the majority opinion in this case, no court, until today, has allowed recovery against the workmen’s compensation insurance carrier under a statute similar to RSA 281:14. See Schultz v. Standard Accident Ins. Co., 125 F. Supp. 411 (E. D. Wash. 1954); McCoid, The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Non-Employers, 37 Tex. L. Rev. 389 (1959). Everyone agrees the crucial issue is *536 one of legislative intent and the question is whether our workmen’s compensation statute intended to allow recovery against the workmen’s compensation insurance carrier by using the statutory phrase “some person other than the employer.” RSA 281:14. Whether the allowance of recovery will affect the growing and successful practice of inaugurating safety, accident prevention, and rehabilitation programs by insurance carriers adversely and to the ultimate detriment of employees is a matter for executive study and legislative assessment rather than for determination by judicial fiat. See Report of Special Committee Appointed to Study the Workmen’s Compensation Law and To Cooperate with the More-land Act Commission Investigating Workmen’s Compensation Costs, Operations and Procedures, N. Y. State Bar Ass’n (January 1957). But, in any event, I am of the opinion that the Legislature did not intend to classify the workmen’s compensation insurance carrier in the category of a third party tort feasor, such as an independent subcontractor. (Butler v. King, 99 N. H. 150), or a fellow employee (Merchants &c. Cas. Co. v. Tuttle, 98 N. H. 349).

Sometimes it is proper and equally profitable to examine the practical facts of life rather than relying on collapsible canons of statutory construction. Laconia Water Company v. Laconia, 99 N. H. 409, 412. No one maintains that our workmen’s compensation statute is a model statute and for many years improvements to it have been made slowly and with deliberation through an unofficial committee representing labor and management. Amendments that have not received the endorsement of this joint committee have uniformly failed of enactment. I find nothing in the legislative history of our workmen’s compensation statute, and in particular of RSA 281:14 which gives any support to the proposition that the workmen’s compensation insurance carrier was or should be considered as an independent third party liable for injuries to employees. On the contrary, the workmen’s compensation insurance carrier was considered to stand in the shoes of the insured employer and liability of the workmen’s compensation insurance carrier was coequal and coextensive with that of the insured employer but no greater or different. Breheny v. Essex County, 136 N. J. L. 524, 527. Vance, Insurance (3d ed.) 798; Reisenfeld & Maxwell, Modern Social Legislation 416 (1950); 7 Appleman, Insurance Law and Practice, s. 4624, p. 471. For the reasons stated above I should sustain the defendant’s motion to dismiss.

*537 Sheehan, Phinney, Bass, Green, & Bergevin and Richard A. Morse (Mr. Phinney orally), for the defendant American Employers Insurance Co., for the motion.

Hinkley & Hinkley (Mr. Walter D. Hinkley orally), for the American Mutual Insurance Alliance, as amicus curiae, for the motion.

Sulloway, Hollis, Godfrey & Soden (Mr. Godfrey orally), for Association of Casualty and Insurance Companies, as amicus curiae, for the motion.

Charles G. Tierney (of New York) for The American Association of State Compensation Insurance Funds, as amicus curiae, for the motion.

Burns, Bryant & Hinchey and Lawrence E. Spellman (Mr. Bryant orally), opposed.

Lampron, J., concurs in this opinion.