One line of cases agrees with Szarek that alleged territorial limitation provisions are in fact choice of law provisions, not limiting coverage based on where the employee chooses to file his claim, but only to restrict benefit eligibility and to set indemnification limits based on the state law specified in the policy. This line of cases includes Smith Chambers Salvage v. Insurance Management Corp., 808 F. Supp. 1492 (E.D. Wash. 1992); Sieman v. Postorino Sandblasting Painting Co., Ill Mich. App. 710, 314 N.W.2d 736 (1981); American Mutual Insurance Co. v. Duvall, 117 N.H. 221, 372 A.2d 263 (1977); Toebe v. Employers Mutual of Wausau, 114 N.J. Super. 39, 274 A.2d 820 (App.Div. 1971); Kacur v. Employers Mutual Casualty Co., 253 Md. 500, 254 A.2d 156 (1969); and Weinberg v. State Workmen's Insurance Fund, 368 Pa. 76, 81 A.2d 906 (1951). The other line of cases agrees with Maryland that, for there to be coverage, the claim must actually be filed in the state whose law is made to apply in defining the term "worker's compensation law."
One line of cases agrees with Szarek that alleged territorial limitation provisions are in fact choice of law provisions, not limiting coverage based on where the employee chooses to file his claim, but only to restrict benefit eligibility and to set indemnification limits based on the state law specified in the policy. This line of cases includes Smith Chambers Salvage v. Insurance Management Corp., 808 F. Supp. 1492 (E.D. Wash. 1992); Sieman v. Postorino Sandblasting Painting Co., 111 Mich. App. 710, 314 N.W.2d 736 (1981); American Mutual Insurance Co. v. Duvall, 117 N.H. 221, 372 A.2d 263 (1977); Toebe v. Employers Mutual of Wausau, 114 N.J. Super. 39, 274 A.2d 820 (App. Div. 1971); Kacur v. Employers Mutual Casualty Co., 253 Md. 500, 254 A.2d 156 (1969); and Weinberg v. State Workmen's Insurance Fund, 368 Pa. 76, 81 A.2d 906 (1951). The other line of cases agrees with Maryland that, for there to be coverage, the claim must actually be filed in the state whose law is made to apply in defining the term "worker's compensation law."
Indeed, other states have declined to adopt interpretations that would cause liability to hinge on the location of the filing. See Miller Bros. Const. Co. , 155 A. at 713 ; American Mutual Insurance Co. v. Duvall , 117 N.H. 221, 372 A.2d 263, 266 (1977) ; Weinberg v. State Workmen's Ins. Fund , 368 Pa. 76, 81 A.2d 906, 909 (1951) ; Lenny Szarek, Inc. v. Maryland Casualty Co. , 357 Ill.App.3d 584, 293 Ill.Dec. 946,829 N.E.2d 871, 875 (2005). An employee's choice to file a workers' compensation claim in a particular state is merely "a happenstance" that is immaterial to an insurer's liability under its policy.
" 368 Pa. 76, 82. See also American Mutual Ins Co v Duvall, 117 N.H. 221; 372 A.2d 263 (1977), Kacur v Employers Mutual Casualty Co, 253 Md. 500; 254 A.2d 156 (1969). The rationale of Weinberg is applicable to the similarly worded policy of the instant case.
Although the opinion in Travelers undoubtedly supports Lumbermens' position, the California court's opinion is not binding precedent in this case. Both Consolidated and Travelers have been heavily criticized by other courts and commentators.Sieman v. Postorino Sandblasting and Painting Company, 111 Mich. App. 710, 314 N.W.2d 736 (1981); American Mutual Ins. Co. v. Duvall, 117 N.H. 221, 372 A.2d 263 (1977); Toebe v. Employers Mutual of Wausau, 114 N.J. Super. 39, 274 A.2d 820 (1971); Kacur v. Employers Mutual Casualty Company, 253 Md. 500, 254 A.2d 156 (1969); Weinberg v. State Workmen's Ins. Fund, 368 Pa. 76, 81 A.2d 906 (1951); 2 Larson, Workmen's Compensation Law 464 (1968 Supp.). These courts follow the approach suggested in Weinberg, i.e., the insurer is held liable to the extent it would have been had the employee initially sought relief in the state covered by the policy.
One line of cases agrees with [the employer] that alleged territorial limitation provisions are in fact choice of law provisions, not limiting coverage based on where the employee chooses to file his claim, but only to restrict benefit eligibility and to set indemnification limits based on the state law specified in the policy. This line of cases includes Smith & Chambers Salvage v. Insurance Management Corp., 808 F.Supp. 1492 (E.D.Wash.1992); Sieman v. Postorino Sandblasting & Painting Co., 111 Mich.App. 710, 314 N.W.2d 736 (1981); American Mutual Insurance Co. v. Duvall, 117 N.H. 221, 372 A.2d 263 (1977); Toebe v. Employers Mutual of Wausau, 114 N.J.Super. 39, 274 A.2d 820 (App.Div.1971); Kacur v. Employers Mutual Casualty Co., 253 Md. 500, 254 A.2d 156 (1969); and Weinberg v. State Workmen's Insurance Fund, 368 Pa. 76, 81 A.2d 906 (1951).
That [the claimant] for reasons of his own chose to file in New Hampshire, is a happenstance which is irrelevant to the question of [the insurer's] liability under the policy.American Mut. Ins. Co. v. Duvall, 117 N.H. 221, 372 A.2d 263, 266 (1977) (emphasis supplied). In contrast to Kacur and the cases discussed above, the claimant in the instant case did not have a choice of forums.