In Ongaro v. Country Flooring Enterprises, the Appellate Division decided a case involving sufficient compliance of a policy cancellation notice pursuant to the applicable statute and determined that “like” notice under N.J.S.A. 34:15-81(B) does not equate with “identical notice” or “perfect notice.” Under N.J.S.A. 34:15-81, there are two notices that must be sent out when an insurer seeks to cancel a policy. First, the carrier must send the cancellation notice to the insured at the insured’s address listed on the insurance policy. It is not necessary to obtain acknowledgment of receipt from the insured - only verification that the notice was sent to the listed address on the policy.  second, it is also required to send a “like notice” to the Department of Banking and Insurance, with a certified statement verifying notice to the insured. Previously, the Appellate Division decided that certified mail satisfied the requirement of “registered mail” for cancellation notices under N.J.S.A. 34:15-81(a). In Ongaro, the Appellate Division reversed the Workers’ Compensation Court’s ruling that the insurer failed to provide “like notice” that consequentially rendered the policy cancellation ineffective. It held that the clerical errors did not materially impair the insurer’s adherence to the statute. It was alleged that the typewritten notice to the Department of Banking and Insurance included two errors: first, the effective date of the policy was listed one year later than it actually was, and second, it mistakenly listed the mailing date of the employer’s cancellation notice as six days later than it actually was sent. Although N.J.S.A. 34:15-81 dates back to 1917, there is no reported case which discusses the elements of the “like notice” called for under subsection (b). In instances where a statute is not specific as to a term, courts are required to construe the meaning in a sensible manner that furthers the underlying purpose of the statute. The Appellate Division did not equate “like notice” under N.J.S.A. 34:15-81(b) with “identical notice” or “perfect notice”. However, it is important to note that the issue of how the inaccuracies did or could have affected any regulatory action by the Department of Banking and Insurance, or any third parties who might have checked the Department’s records was not addressed. It was held that the minor clerical mistakes did not warrant the adverse consequences of compelling coverage for a cancelled policy. This is a slight departure from the “strict compliance” standard that is applied to coverage issues. While not wanting to encourage sloppiness by insurers or others who file forms with state agencies, the Appellate Division essentially weighed the clerical mistakes and the adverse consequences and determined there was no prejudice caused, and therefore reversed the Workers Compensation Court. Had the facts been different, such as if an earlier date had been recited and the insured employer had been deprived of its full ten days under the statute to cure the non-payment of its premium, then the result would have been different.

Daniel L. Maisel, Esq.