NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3838-19T2
NELSON PIERSON,
Petitioner-Respondent,
v.
TRAVELERS INDEMNITY
COMPANY,
Respondent-Appellant,
and
TREMARCO BROTHERS,
DONALD FORLEO and
FRUTAROM U.S.A.,
Respondents-Respondents.
______________________________
Submitted November 10, 2020 – Decided December 7, 2020
Before Judges Fisher and Gilson.
On appeal from the New Jersey Department of Labor,
Division of Worker's Compensation, Claim Petition
Nos. 2016-13683 and 2016-25360.
Leary, Bride, Mergner & Bongiovanni, attorneys for
appellant (David J. Dering, of counsel and on the
briefs).
Marc J. Brenner, attorney for respondent Nelson
Pierson.
Heimerl Law Firm, attorneys for respondents Tremarco
Brothers and Donald Forleo (Wolfgang Heimerl and
Susan Curtin Gouldin, on the briefs).
Charlotte C. Kelley, Senior Counsel, attorney for
respondent Uninsured Employer's Fund, joins in the
brief of respondent Nelson Pierson.
PER CURIAM
Petitioner Nelson Pierson commenced this workers' compensation matter,
alleging he was injured on May 7, 2016, during the course of his employment
with respondent Tremarco Brothers (Tremarco).1 Respondent Travelers
Indemnity Company filed an answer denying coverage and thereafter quickly
moved to dismiss based on its allegation that the coverage it had once provided
to Tremarco was cancelled prior to Pierson's alleged work-related accident.
The workers compensation judge determined that testimony was required
to resolve the parties' coverage dispute. After hearing testimony over the course
1
Pierson later filed amended claim petitions, asserting that others – Donald
Forleo, Tremarco Bros. Scrap Metal Trucking, Inc., and Frutarom U.S.A. – may
also be responsible to pay workers' compensation benefits.
A-3838-19T2
2
of four separate hearing days, the judge entered an order on May 11, 2020, that
denied Travelers' motion to dismiss for reasons set forth in a written opinion.
Travelers filed a motion for leave to appeal that we granted to consider
Travelers' argument that the judge erred in denying its motion to dismiss.
Travelers argues in this appeal that it provided sufficient evidence to
demonstrate that it validly cancelled the policy. To be sure, Travelers provided
evidence and called witnesses to testify that the policy had been cancelled prior
to Pierson's injury, but the judge was not obligated to credit this evidence or
testimony. The applicable standard of appellate review requires that we defer
to a workers' compensation judge's findings when those findings "reasonably
could have been reached on the basis of sufficient credible evidence in the
record, with due regard to the agency's expertise." Brock v. P.S.E.&G. Co., 149
N.J. 378, 383 (1997). We likewise defer to a compensation judge's findings that
the evidence adduced was not credible, sufficient, or persuasive.
In this case, there was no dispute about some basic facts. In March 2014,
Tremarco applied to the New Jersey Workers' Compensation Plan for
assignment of an insurance company to provide it with coverage. Tremarco was
assisted in this regard by its agent, Brian Piccolo. Travelers was assigned and
A-3838-19T2
3
provided coverage for 2014-15. As that policy ended, Travelers also issued a
policy for 2015-16.
Travelers claimed that Tremarco failed to cooperate with an audit request
during the second policy term. Without Tremarco's input, Travelers' audit
resulted in Travelers charging Tremarco with an increased premium on both
annual policies in an amount nearly double the previously billed premium.
Travelers also alleged that it sent on July 6, 2015, a notice that declared the
policy would be cancelled on July 24, 2015, if Tremarco failed to pay the
additional premium.
To prove this alleged cancellation, Travelers offered the testimony of
Timothy J. Lukes, a senior account manager underwriter. Lukes was offered as
a person with knowledge of how Travelers conducts premium audits and how it
would go about cancelling a policy, but his testimony also revealed he was not
the underwriter assigned to Tremarco. Lukes identified the individual who was
responsible for Tremarco's account but, as the judge emphasized in her written
opinion, this other individual was never called as a witness. The judge also
recognized that while Lukes was able to describe the insurance policies and the
audit process, he was "unable to explain specific actions or the reasons for [the]
A-3838-19T2
4
actions taken by Travelers on the Tremarco account." Travelers called Piccolo
to testify as well. The judge found his testimony uninformative.
Of importance is the fact that Travelers attempted to demonstrate that its
July 6 notice would have advised Tremarco that if the additional premium
deemed owing was not paid the policy would be cancelled on July 24. But Lukes
testified that when an additional premium after an audit is being sought, the
notice would not ordinarily state that a failure to pay would result in
cancellation, only that the failure "can affect your insurability."
In denying Travelers' motion to dismiss for reasons thoroughly discussed
in a twenty-page written opinion, the workers' compensation judge recognized
that N.J.S.A. 34:15-81, which governs the cancellation of such a policy, 2 has
been declared by the Supreme Court as "clear and unambiguous," Sroczynski v.
Milek, 197 N.J. 36, 43 (2008), and that it was Travelers' obligation to prove that
it had complied with the statute's terms. Travelers, as the judge observed, failed
to produce any witness with personal knowledge of the mailing and receipt of
2
N.J.S.A. 34:15-81 declares that such a contract of insurance "may be canceled
by either the employer or the insurance carrier within the time limited by such
contract for its expiration" and that "[n]o such policy shall be deemed canceled
until," among other things, (a) "[a]t least ten days' notice in writing of the
election to terminate such contract is given by registered mail by the party
seeking cancellation thereof to the other party thereto."
A-3838-19T2
5
the alleged cancellation notice. While recognizing facts about mailing may be
proven with evidence of an office custom, SSI Med. Servs., Inc. v. HHS, Div.
of Med. Assistance & Health Servs., 146 N.J. 614, 622 (1996), the judge found
that Travelers didn't even offer that type of evidence. Moreover, even if the
judge credited Lukes' testimony and drew inferences from it to support a finding
that a notice concerning the additional premium generated by the audit was
mailed on July 6, there was nothing to suggest that the mailed notice advised
that the policy would be cancelled on July 24. Instead, as suggested by Lukes'
testimony, the notice might have said only that the failure to pay by July 24
would simply "affect [Tremarco's] insurability," which would not be sufficient
to bring about a cancellation on July 24 under the statute.
Clearly, the judge ruled against Travelers because Travelers' failed to call
a witness with personal knowledge about either this account or office mailing
customs. The judge viewed the testimony that was offered as insufficient to
carry Travelers' burden to show a cancellation under N.J.S.A. 34:15-81, as
viewed in light of the public policy that favors the continuation of cover age
unless the insurer strictly complied with all statutory and regulatory
requirements. See Bright v. T & W Suffolk, Inc., 268 N.J. Super. 220, 225 (App.
Div. 1993). The judge was entitled to make the findings in question without this
A-3838-19T2
6
court second-guessing her evaluation of the testimony and other evidence.
Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588-89 (1988).
Affirmed.
A-3838-19T2
7