Opinion
No. 11–P–1732.
2012-06-13
Stephen P. VISCO'S CASE.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue on appeal is whether AIM Mutual Insurance Co. (AIM) properly terminated, pursuant to G.L. c. 152, § 65B, as amended through St.1991, c. 398, § 90A,
and G.L. c. 175, § 187C, as amended through St.1990, c. 287, § 2,
.Section 65B of G.L. c. 152 states in relevant part:
“If, after the issuance of a policy under section sixty-five A, it shall appear that the employer to whom the policy was issued is not or has ceased to be entitled to such insurance, the insurer may cancel or otherwise terminate such policy in the manner provided in this chapter; provided, however, that any insurer desiring to cancel or otherwise terminate such a policy shall give notice in writing to the rating organization and the insurer of its desire to cancel or terminate the same.”
a workers' compensation insurance policy held by the employer, Robert Wyatt Enterprises, Inc. (Wyatt), prior to a workplace injury sustained by Stephen P. Visco, Wyatt's employee. AIM claims that it mailed a notice of nonrenewal to Wyatt by certified mail. After the initial hearing, the administrative judge found that AIM properly terminated coverage. The decision was appealed, and the Industrial Accident Reviewing Board (board) recommitted the case for further findings of facts because “[t]he judge never expressly found the employer received the notice of non-renewal.” The administrative judge issued a revised decision after additional briefing and a new hearing, concluding that AIM had not met its burden of proof that Wyatt received the notice of termination.
.Section 187C of G.L. c. 175 states in relevant part:
“A company issuing any policy of insurance which is subject to cancellation by the company shall effect cancellation by serving the notice thereof provided by the policy.... Such notice ... shall be delivered in hand to the named insured, or be left at his last address as shown by the company's records ... or be forwarded to said address by first class mail, postage prepaid, and a notice left or forwarded, as aforesaid, shall be deemed a sufficient notice. No written notice of cancellation shall be deemed effective when mailed by the company unless the company obtains a certificate of mailing receipt from the United States Postal Service showing the name and address of the insured stated in the policy.”
The relevant portion of the decision stated:
“The [certified mail] green card [notice of receipt] came back to the insurer with a signature on January 11, 2006. The green card had neither the name nor the address of the employer on it. The signature was unreadable and there are no facts in evidence from which I can determine who signed it. I find the testimony of the insurer's witness credible that the green card should have been attached to the notice as this corresponds to the insurer's standard procedures. What is lacking and why the reviewing Board recommitted the matter is the issue of finding that an unaddressed green card, identified only by a number and returned with an unidentified signature constitutes sufficient proof that the piece of mail was in fact received by the employer. Even though I found the insurer's witnesses credible, a re-review of the evidence shows a chain of events that lacks sufficient indices of chain of control to allow a finding of receipt. The envelope with the green card could have contained anything, been sent anywhere and signed by anyone. There was not sufficient documentation regarding the destination or the recipient of this particular notice and receipt. I do not find that the insurer has met its burden of proof that the employer received the notice of termination. I find that the policy was not effectively terminated. Ultimately the employer paid the premium. I find that the policy remained in effect and that AIM Mutual Insurance Company was on the risk on March 31, 2006 and that the employer was insured.”
On appeal, AIM has failed to produce transcripts from any of the relevant hearings or copies of any other evidence that might demonstrate Wyatt's receipt of the notice of termination.
Furthermore, AIM's brief does not include a statement of facts with relevant citations to the record as required by Mass.R.A.P. 16(a)(3), 365 Mass. 861 (1974), or citations to statutes and other relevant authorities as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975). As such, AIM's brief does not rise to the level of proper appellate argument. See Curreri v. Isihara, 80 Mass.App.Ct. 193, 202 n. 19 (2011). Based on the record presented, we find no merit to AIM's arguments.
AIM does not challenge the board's determination that, “under [G.L. c. 175], § 65B, ‘the insurer was obligated to prove the employer's receipt of the notice of non-renewal in order to effect a termination in coverage.’ Bombard v. RDA Const. Corp., 22 Mass. Workers' Comp. Rep. 355, 356 (2008).”
Decision of reviewing board affirmed.