Sroczynski v. Milek

New Jersey Manufacturers Insurance Company (NJM) issued a standard Workers’ Compensation and Employer’s Liability Insurance Policy to John Milek Construction (Milek) covering the period from May 6, 2003 to May 6, 2004. Milek ceased making payments on the policy after the initial premium was satisfied. As a result, on August 14, 2003, NJM sent Milek a notice of eancella*40tion by certified mail. On August 15, 2003, NJM notified the New Jersey Commissioner of Banking and Insurance of the cancellation, using an electronic file transfer protocol (FTP) established by the New Jersey Compensation Rating and Inspection Bureau (CRIB).1

On February 28, 2004, petitioner, Walter Sroczynski, an employee of Milek, sustained a work-related injury. On March 17, 2004, Sroczynski filed a claim with the Division of Workers’ Compensation, seeking workers’ compensation benefits.

NJM moved to be relieved of responsibility for providing coverage, arguing that it had properly canceled Milek’s policy almost six months earlier. Opposing NJM’s motion was Sroczynski and the Uninsured Employer’s Fund (UEF). Because of the significant medical costs incurred in caring for Sroczynski after his injury, the trial judge also granted Robert Wood Johnson University Hospital (RWJH) intervenor status.

At issue in the case was whether NJM satisfied N.J.S.A. 34:15-81, which sets forth the specific requirements for cancellation of a workers’ compensation policy of insurance:

Any contract of insurance issued by a stock company or mutual association against liability arising under this chapter may be canceled by either the employer or the insurance carrier within the time limited by such contract for its expiration. No such policy shall be deemed, to be canceled, until:

a At 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; and

b. Until like notice shall be filed in the office of the commissioner of banking and insurance, together with a certified statement that the notice provided for by paragraph “a" of this section has been given; and

*41e. Until ten days have elapsed after the filing required by paragraph “b” of this section has been made.

The provisions “b” and “c” of this section shall not apply where the employer has replaced the contract to be canceled by other insurance, and notice of such replacement has been filed with the Commissioner of Banking and Insurance. In such event the notice required by provision “a” may, if given by the insurance carrier, recite as the termination date the effective date of the other insurance, and the contract shall be terminated retroactively as of that date. No notice of cancellation of any such contract need be filed in the office of the Commissioner of Banking and Insurance where the employer is not required by any law of this State to effect such insurance.

[N.J.S.A. 34:15-81 (emphasis added).]2

At a plenary hearing, the Judge of Compensation heard testimony from an assistant vice president of NJM. He testified that NJM was aware of the procedures required by N.J.S.A. 34:15-81 to cancel workers’ compensation coverage and that the notice of cancellation sent to Milek by certified mail satisfied the statute. He also claimed that NJM complied with the “like notice” and “certified statement” requirements of N.J.S.A. 34:15-81(b) by the electronic transfer to CRIB.

The Judge of Compensation ruled that NJM failed to cancel the policy because, as NJM acknowledged, it did not file a written “certified statement” when it transmitted data by way of the FTP. Further, the judge discounted NJM’s reliance on the CRIB Manual because it “outlines the manner in which the notice is to be filed and in no way relieves the carrier from its obligation to certify the information.” Finally, based on the public policy favoring the provision of workers’ compensation insurance, the judge found that strict compliance with the cancellation statute was necessary *42to avoid allowing a carrier to evade its responsibilities and “deny the insured worker the recovery promised to him by the law.”

NJM appealed, arguing that its cancellation of Milek’s policy satisfied the statute and, alternatively, that the doctrine of substantial compliance applies. In rejecting those arguments, the panel focused exclusively on the purpose and meaning of the “certified statement” requirement of N.J.S.A. 34:15 — 81(b) and declared that NJM’s argument would require it “to ignore a portion of the statutory scheme that the Legislature believed was important, and would in effect constitute a rewriting of the statute.” Sroczynski v. Milek, 396 N.J.Super. 248, 256, 933 A.2d 931 (App.Div.2007). The panel also rejected NJM’s argument that because NJM complied with the CRIB Manual, it complied with the statute, stating “NJM’s argument ignores one of the key provisions of the manual[,]” id. at 255, 933 A.2d 931, which requires compliance with all sections of the workers’ compensation statutes. Further, the panel rejected NJM’s substantial compliance argument, concluding that the case does not satisfy the purpose of the substantial compliance doctrine, which is to “avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 352, 771 A.2d 1141 (2001). Finally, it awarded counsel fees and costs to Sroezynski and the UEF.

We granted NJM’s motion for leave to appeal from the judgment and the award of attorneys’ fees to Sroczynski and to the UEF. 192 N.J. 591, 934 A.2d 635 (2007); 193 N.J. 272, 937 A.2d 975 (2007). We also granted leave to the Property Casualty Insurers Association of America (PCIA) and the Insurance Council of New Jersey (ICNJ) to participate as amici curiae.

Before us, the parties maintain the positions they advanced below. NJM argues that it complied, or at least complied substantially, with the statute, and that any contrary holding would, at best, be a new rule of law requiring purely prospective application, *43and that counsel fees are not authorized. Amici PCIA and ICNJ side with that view.

Sroczynski and the UEF counter that the statute was not satisfied because of the absence of a “certified” statement, that the CRIB Manual specifically incorporates the statutory requirements, and that this case does not involve the kind of technical slip-up that substantial compliance was meant to address. In addition, they urge us to conclude that their interpretation is not a new rule of law and that counsel fees are authorized. Amicus RWJH supports that view.

We have carefully reviewed this record in light of the claims advanced and, except with respect to the award of counsel fees to the UEF, have concluded that there is no warrant for our intervention. We therefore affirm the judgment of the Appellate Division in Sroezynski’s favor substantially for the reasons expressed in Judge Baxter’s opinion.

We add the following. The language of N.J.S.A. 34:15-81 is clear and unambiguous, allowing for no interpretation other than that filing a certified statement with the Commissioner is a prerequisite to effectuating the cancellation of coverage. In light of the clarity of that part of the statute, CRIB lacked the authority to relieve the insurers of their obligation to comply with the requirement for filing a certification. Although CRIB could, consistent with its legislative mandate, create an alternate mechanism by which insurers could comply with the statute, it could not adopt a protocol that operated to allow the cancellation of coverage without submission by the insurers of some version of the statutorily required certification. In short, the Appellate Division correctly concluded that the use of the FTP system to transmit data about policy cancellations, without any accompanying certification, cannot be effective in light of the clear and unambiguous demands of N.J.S.A. 34:15-81(b).

Regarding substantial compliance, although we might not have parsed the elements of the doctrine exactly as the Appellate *44Division did, we too have concluded that this is not a case that satisfies the policies that inform the substantial compliance doctrine. Here, the Legislature did not simply require notice to the Commissioner but also commanded that the insurer provide a certification by an employee attesting to the truthfulness of the fact that proper notice was afforded the insured. Although the legislative history of the Act is sparse, it seems obvious that the purpose of that provision was to place personal responsibility on an employee of the insurer to assure that proper notice, of cancellation was given and to require that employee to certify to that fact, recognizing the legal implications of a false certification. The electronic provision of information to the Commissioner, without a certification, completely defeats the notion of personal responsibility that the certification provision was intended to secure. It was, thus, not simply a technical misstep. As such, the insurer could derive no comfort from a substantial compliance analysis which is meant to ameliorate the harsh consequences of actions that meet the spirit of a law but technically fall short.

To be sure, the industry acted in good faith in its approach to the issue in reliance on CRIB’s, at best, confusing advice. Nevertheless, the fact remains, as the Appellate Division pointed out, that the clear requirements of N.J.S.A. 84:15-81 were not satisfied, nor was substantial compliance effectuated.

NJM and the amici argue that such a decision constitutes a new rule of law which should be applied prospectively. We disagree. In ruling, we have merely confirmed the meaning of a clear statute. Thus, there is no warrant for a retroactivity analysis. State v. Burstein, 85 N.J. 394, 403, 427 A.2d 525 (1981) (holding retroactivity analysis relevant only in eases involving departure from existing law). Where a ruling is not a break from the past, we construe it as “one that has always applied.” State v. Colbert, 190 N.J. 14, 22, 918 A.2d 14 (2007).

Nevertheless, we are concerned over the amici’s argument that the practical effect of invalidating all prior cancellations with respect to which notice was electronically afforded would be to *45create chaos in the workers’ compensation insurance industry. Although the magnetic tape option allowed by CRIB does permit transmission of certifications as the statute requires, many insurers have been relying on the FTP system and therefore have not complied with that part of the statute at all.3 The decision that the FTP system has been ineffective to achieve cancellation thus will east doubt on thousands of policy cancellations in spite of the fact that they were never challenged. Had those cancellations been challenged in a timely fashion, the insurer might have been able to reconstruct the records and provide an employee’s certification. Whether that would be possible now seems problematic. That is an untenable state of affairs. Thus, we have concluded that Sroczynski and any other party who previously raised the notice issue should be granted relief from the improper cancellations but that those cancellations that were never challenged should stand because the policyholders waived their right to do so.

That outcome is not perfect, but it rewards those who pursued their legal options; leaves those who waived a challenge with the results of their waiver; and does not throw into chaos an industry that adopted a mistaken plan of action in good faith reliance on official misinformation.

With respect to counsel fees, we affirm regarding the award to Sroczynski. We find no basis on which to conclude that the Appellate Division abused its discretion in its grant of fees to Sroczynski or in the quantum thereof. See R. 2:ll-4(a) (incorporating statutory bases for award at trial level, R. 4:42-9(a) thus encompassing N.J.S.A. 34:15-64).

*46We reach a different conclusion in respect of the Appellate Division’s award of counsel fees to the UEF. Our analysis of R. 2:11 — 4(b) reveals no ground on which to sustain such an award on an appeal. Although broad in its description of workers’ compensation appeals, the rule suggests that the award of fees is intended for the benefit of the injured worker and thus provides no ground for an award in favor of UEF. See R. 2:ll-4(b).

Nor do we find authority in the more general subpart of the Rule which refers to “actions in which an award of counsel fees is permitted by R. 4:42-9(a).” R. 2:ll-4(a). That Rule, which allows an award of fees to a successful claimant in actions based on indemnity or liability insurance policies, see R. 4:42— 9(a)(6), has no application because the Fund does not qualify as such a successful claimant. See Messec v. USF & G Ins. Co., 369 N.J.Super. 61, 64, 848 A.2d 36 (App.Div.2004) (“Fees should not be awarded [under Rule 4:42-9(a)(6) ] when an insurer loses a dispute with another insurer____”).

The only other potentially applicable rule refers to statutes that specifically allow counsel fees, see R. 4:42 — 9(a)(8). However, there is neither a basis for such an award in the UEF statute (N.J.S.A. 34:15-120.1 to -120.30) nor in the workers’ compensation statute (N.J.S.A. 34:15-64). Lacking a basis in law, we reverse the award of counsel fees to the UEF.

The judgment of the Appellate Division in favor of Sroczynski is affirmed and the award of counsel fees to the UEF is reversed, for the reasons to which we have adverted.