Scammahorn v. Gibraltar Savings & Loan Assn.
Scammahorn v. Gibraltar Savings & Loan Assn.
Opinion of the Court
The opinion of the court was delivered by
This is an appeal from a lump-sum judgment of workmen’s compensation award entered by the district court pursuant to G. S. 1961 Supp., 44-512a.
Counsel for the parties filed a stipulated and agreed record which is summarized as follows: On October 28, 1963, the examiner granted the plaintiff, Dale F. Scammahorn, a workmen’s compensation award and ordered the defendant, Gibraltar Savings & Loan Association, to pay $9,629.73 compensation and $1,937.20 medical benefits. Gibraltar requested a review by the director of workmen’s compensation who entered an order November 20, 1963, affirming the award. Two days later Gibraltar appealed the award to the district court, which was docketed as case No. 15,892-B, and is appeal No. 44,146, Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 273, 404 P. 2d 170, this date decided.
On December 19, 1963, the plaintiff served an amended demand upon Gibraltar for all compensation due and unpaid in the amount of $9,629.73. However, on December 18, 1963, Gibraltar tendered to plaintiff all compensation due for the ten-week period next preceding the director’s decision of November 20, 1963, and did thereafter make weekly tenders of checks in the sum of $23.25 each for compensation due the plaintiff as ordered by the examiner and approved by the director of workmen’s compensation, up to and including January 24, 1964. The plaintiff refused to accept Gibraltar’s weekly tender of compensation due, and returned each of its checks as they were tendered.
On January 24, 1964, the plaintiff commenced this action to recover a lump-sum judgment of compensation awarded in the sum of $9,629.73. He alleged he had made all statutory demands and performed all other conditions precedent, but that Gibraltar had failed to pay all compensation which was then due and unpaid.
Gibraltar’s answer alleged that plaintiff’s award for compensation was pending on appeal in the district court in case No. 15,892-B; that it had complied with the provisions of G. S. 1961 Supp., 44-556, now K. S. A. 44-556, by filing a bond with the district court in accordance with provisions of G. S. 1949, 44-530, now K. S. A. 44-530, and had tendered all compensation due for the ten-week period next preceding the director’s decision and all compensation accrued since that time and that the plaintiff had returned all payments except the payment of medical expenses, which was retained.
The parties stipulated that Gibraltar had no workmen’s compensation insurance and that it had not taken steps to qualify as a self-insurer under the provisions of G. S. 1949, 44-532, now K. S. A. 44-532. Thereafter each party filed a motion for summary judgment.
On June 16, 1964, the district .court filed a written memorandum opinion containing its findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff in the sum of $9,629.73.
The real issue presented is whether Gibraltar, who had no workmen’s compensation insurance and who had failed to qualify as a
In its conclusions of law, the district court stated that prior to the amendment to 44-556 in 1961, Gibraltar could not plead the defense it alleged since the facts in the instant case were substantially the same as the facts in Teague v. George, 188 Kan. 809, 365 P. 2d 1087. In that case we held that a supersedeas bond filed by an employer and his insurance carrier under 44-530 did not stay the payment of compensation pending his appeal to the district court, or afford protection from a statutory action commenced by the claimant under 44-512a to recover a lump-sum judgment. The district court also noted that the 1961 amendment provided that “if the employer is insured,” or “if the employer is a self-insurer” and has posted bond, he is relieved to some extent of the holding in Teague, and since the parties stipulated that Gibraltar was not insured, it asked the question, “Was it a self-insurer?” In its memorandum opinion, the court stated:
“Section 44-532, G. S. Kansas 1949, described what it takes to be a self-insurer. It provides that every employer shall secure compensation to his employees by insuring in one of the following ways:
“ ‘First, by insuring and keeping insured the payment of such compensation with any stock corporation or mutual association or reciprocal or interinsurance exchange or association authorized to transact the business of workmen’s compensation insurance in the state of Kansas; or, second, by showing to the commissioner that said employer carries his own risk and is what is known as a self-insurer and by furnishing proof to the commissioner of his or its financial ability to pay such compensation for himself or it.’
“Admittedly, Gibraltar in this case did not take the steps to become a self-insurer within the contemplation of 44-532.
“What is the situation of an employer who is neither an insured, nor a self-insurer within the contemplation of 44-532? Either he has to be in a third category, different from either the insured group or the group of self-insurers. Or else it must be said that anyone without insurance is automatically a self-insurer.
“On the basis of section 44-532, my answer to the question posed is that Gibraltar is neither an insured nor a self-insurer and is not entitled to the benefits of the 1961 amendment to section 44-556.”
“Provided, That no compensation shall be due or payable until the expiration of such twenty (20) day period and then the payment of past due compensation awarded by the director shall not be payable, if within such twenty (20) day period notice of appeal to the district court has been filed and the right to appeal shall include the right to make no payments of such compensation until the appeal has been decided by the district court if the employer is insured for workmen’s compensation liability with an insurance company authorized to do business in this state or, if the employer is a self-insurer, and has filed a bond with the district court in accordance with section 44-530 of tire General Statutes of 1949: Provided, however, That the perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal . . .”
In the same enactment that amended 44-556, the legislature also amended 44-512a by changing the period of time the statutory demand could be served from fourteen days to twenty days, so as to make the time within which to serve the demand and the time to appeal to the district court from an award of compensation to be coextensive. Previously, an employer found himself served with a 44-512a demand for payment, although the time in which he could appeal to the district court had not expired. The obvious purpose
Likewise, it is obvious the legislature intended by its amendment to 44-556 that if an employer was insured for workmen’s compensation liability, or if he was a self-insurer and had filed a bond with the district court pursuant to 44-530, he was relieved of payment of compensation during the first twenty days after the entry of the award if, within such twenty-day period, he perfected an appeal to the district court. However, the legislature also intended that if such an employer perfected an appeal to the district court, he was not relieved of payment of compensation due for the ten-week period next preceding the director’s decision and of additional payments in accordance with the terms of the award until the district court rendered its decision on the appeal. If an employer failed to make payment of compensation after his appeal was perfected, the legislature further intended that a statutory demand under 44-512a could be served.
Generally speaking, the legislature has classified “every employer” under the Workmen’s Compensation Act who shall secure compensation to his employees, into two broad categories—those who are insured by workmen’s compensation liability, and those who carry their own risk and are known as self-insurers and are financially able to pay all compensation allowed. (K. S. A. 44-532.) In the instant case, Gibraltar was not insured for workmen’s compensation liability, but it carried its own risk, and we think it is to be classified as a “self-insurer” as that term is used in 44-556. It is evident that by the 1961 amendment, the legislature sought to relieve employers from the holding in the Teague case, and intended by its use of the term “self-insurer” to cover any employer who carried his own risk and was not insured by workmen’s compensation liability. Such a construction is in accord with our holding in Willmeth v. Harris, 195 Kan. 322, 403 P. 2d 973, that statutes should be so construed as to carry out the legislative intent, and when such intent is once ascertained, it should be given effect even though the literal meaning of the words used therein is not followed. Further, that statutes should never be given a construction that leads to uncertainty, injustice, or confusion, if it is possible to construe them otherwise. Moreover, this
From the foregoing, we conclude that when Gibraltar tendered all medical payments due to the plaintiff, which he accepted, and also tendered the payment of compensation due for the ten-week period next preceding the director’s decision, and made weekly tenders of the amount of compensation due him in accordance with the terms of the award, which he refused, there was no compensation due and payable to him within the meaning of 44-512a which the defendant had either refused to pay or had not tendered within twenty days after the date of service of the demand, and the plaintiff had no cause to recover a lump-sum judgment.
It follows that the judgment of the district court must -be reversed.
Dissenting Opinion
dissenting: The legislature has provided in K. S. A. 44-532 how an employer may become a self-insurer. Such an employer is required to furnish proof to the director of his or its financial ability to pay compensation awarded to his employees. The purpose of this requirement is obvious. It is to permit the director to determine in advance the financial ability of the employer to pay compensation, and if proof of such ability is lacking, to deny the application and require the employer to insure and keep insured the payment of compensation with a corporation or association authorized to transact the business of workmen’s compensation in this state.
Reference
- Full Case Name
- Dale F. Scammahorn, Plaintiff-Appellee, v. Gibraltar Savings & Loan Association, Defendant-Appellant
- Cited By
- 14 cases
- Status
- Published