资源描述
UNINSURED MOTORIST COVERAGETHE IMPACT OF WORKERS COMPENSATION AND WORK-RELATED INJURIES By Timothy W. MonseesA person who is injured by a co-employee in an automobile accident while in the course of his or her employment may be entitled to recover under both a policy providing for uninsured motor vehicle coverage (UM) and under the workers compensation law. This situation raises several legal issues. First, in light of case law immunizing co-employees from legal liability under workers compensation, is the at-fault employee considered someone from whom the injured party is “legally entitled to recover?” Second, from whose uninsured motorist policy can an injured worker recover? Finally, may an injured employee recover both uninsured motor vehicle benefits and workers compensation? The Workers Compensation Law, 287.010 R.S.Mo. et seq., provides the exclusive remedy for employees against employers for injuries covered by its provisions. However, this immunity extends to employees of the employer in a more limited fashion. While suits against employees personally for breach of the duty to maintain a safe working environment are preempted by the workers compensation laws, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employers responsibility to provide a safe workplace. Gunnett v. Girardier Bldg. And Realty Co. 70 S.W.3d 632 (Mo.App. E.D., 2002). This raises the question, what is an “affirmative negligent act”? In State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 623 (Mo. 2002) the Court stated that, “the question of what constitutes an “affirmative negligent act” has not proven susceptible of reliable definition, and Missouri courts have essentially applied the rule on a case by case basis with close reference to the facts in each individual case.” Id. Without an “affirmative negligent act” a co-employee tortfeasor cannot be held liable, so the only way for an injured employee to collect for the negligence of an automobile tortfeasor may be to collect from an uninsured motorist policy. Conventional wisdom has held that, due to the higher standard of care required of operators of motor vehicles, a fellow employee driver was similarly held to a higher standard of care than the general obligation of employers to provide a safe workplace. Operators of motor vehicles are held to the “highest degree of care.” Hansen v. James, 847 S.W.2d 476 (Mo. App. 1992); MAI 11.01 1996 Revision. Insurers have successfully argued, however, that no distinction should be made between torts arising out of accidents involving automobiles and those that do not. In State ex rel. Taylor v. Wallace, supra, both the injured employee and the defendant were working for the same trash company. The plaintiff was holding on to the side of a trash truck and was swept from the side of the truck as it struck a mailbox. Plaintiff alleged that the defendant: 1) failed to keep a careful lookout; 2) carelessly and negligently struck a mailbox while driving; and 3) carelessly and negligently drove too close to a fixed object. Although plaintiff argued that the operator of the truck failed to exercise the highest degree of care, the court concluded the allegations were no greater in kind or degree than the general obligation of an operator of a motor vehicle on a public road. Accordingly, the drivers neglect did not constitute the kind of affirmative negligent act necessary to defeat the immunity of workers compensation. Of note, although the court cites three case examples to support its conclusion, none involve automobile collisions or a standard of care greater than ordinary negligence. Id. at 622, n. 7. The issue that many courts do not agree upon is whether this immunity defeats the burden of an injured claimant to demonstrate that the tortfeasor is someone from whom the claimant is legally entitled to recover, in accordance with the tenets of uninsured motorist laws and policies. Since several Missouri cases have held that an exclusion in a policy of automobile liability insurance for claims brought by injured fellow employees is not void as against public policy, irrespective of the Motor Vehicle Financial Responsibility Law (MVFRL), a claim for uninsured motorist benefits may be the only source of recovery, aside from workers compensation. 303.010 R.S. Mo. See, e.g., Baker v. DePew, 860 S.W.2d 318 (Mo. 1993). Most courts that have considered the question have held that “legally entitled to recover” imports a condition precedent to the uninsured motorist insurers obligation to pay. For example, in Fox v. Commercial Union Insurance Co., 413 So.2d 679 (La.App. 3rd Cir. 1982), the court held that, since workers compensation is the exclusive remedy for an injured employee against a co-employee, the injured employee did not have a legally enforceable right to recover damages from the co-employee driver. Therefore, the injured worker was not “legally entitled to recover.” The employee had been killed while riding in an automobile operated by a co-worker, acting within the course and scope of his employment. See also, Nobles v. Wolf, 542 N.E.2d 1112 (Ohio App. 1989). The issue in Missouri courts is developing. No Missouri case can be cited as the “gold standard” on this issue. Rather, Missouri courts first distinguish from whose policy the injured employee is attempting to recover. The courts have recognized four possible scenarios from which the injured employee might be able to recover: (1) the injured employees own policy; (2) the injured employees employers policy; (3) the tortfeasor/co-employees policy; or (4) the partner of the injured employee. While the courts have suggested that recovery from any of these four sources is possible, Missouri courts have only addressed scenarios (1) and (2).Although the availability of UM coverage is ultimately a function of the construction of the insurance contract, Missouri courts have consistently declined to permit recovery of UM benefits from a policy issued to the employer (scenario #2 above). An employee of a garbage truck owner was injured in Seymour v. Lakewood Hills Association, 927 S.W. 2d 405 (Mo. App. E.D. 1996), when the operator of the truck backed into a tree. The employer had a UM policy with Ohio Casualty. The court noted that the MVFRL, 303.010 et seq., expressly declines to extend the requirement of UM coverage to “liability on account of bodily injury or death of an employee of the insured while engaged in the employment . . . of the insured.” As such, the exclusion in the employers UM policy for claims brought by injured employees, for the negligent acts of co-workers, was not void as against public policy. Similarly, in Thompson v. Schlechter, 43 S.W.3d 847, 848 (Mo.App. E.D., 2000), an employee was injured while driving a truck owned by his employer when he was struck from the rear by a truck driven by a co-employee. The injured employee made a claim against the UM policy of his employer. The court denied coverage and reasoned, “If we were to hold that plaintiff should fall within uninsured motorist coverage, the effect would be to nullify the fellow employee exclusion from liability coverage, giving the insured protection he did not bargain for.” Id. at 850, citing Seymour, supra, at 408. Nullifying the fellow employee liability exclusion is not something that the courts are willing to do. In Baker v. Depew, supra, the court discussed the importance of the exclusion. “The purpose of the fellow servant exclusion is to separate the employers liability to his employees from that of his liability to the general public. It relieves the employer of the onerous requirement of insuring employees under the employers public liability insurance because they are already protected by the workmens compensations statute.” Id. at 322. However, in Kramer v. Insurance Company of North America, 54 S.W.3d 613 (Mo. App. W.D. 2001), the court distinguished claims for UM benefits filed by an injured worker against his employers policy when the offending party was someone other than an employee of the insured. In Kramer, the plaintiff/employee was injured while driving a truck for his employer when a phantom vehicle crossed the center-line causing the truck to overturn. Judge Ronald Holliger authored an extensive analysis of the history of employee exclusions and the public policies behind courts decisions on this issue. As articulated by Judge Holliger, “The question is whether the employee exception authorized by 303.190.5, RSMo., trumps the mandatory uninsured motorist requirement of 379.203, RSMo., where the uninsured motorist is not a fellow employee of the injured employee.” Id. at 616. The court reasoned further that, “References to “liability” of the insured/employer in 303.190.5 seem clearly to refer to liability based on status as an employer.” Id. at 620. Since Mr. Kramers claims against the UM carrier were not, in any way, grounded on the employers status, his claim against the employers UM policy was permitted. However, when determining whether or not the injured employee can collect from his or her own uninsured motorist policy (scenario #1 above), at least one Missouri court has recognized coverage. In Thompson v. Schlechter, supra, as discussed hereinabove, the court declined to find UM coverage for the plaintiff from his employers automobile policy. However, the plaintiff also sought recovery for his injuries from his own UM policy with Shelter Mutual Insurance Company. Most importantly, the court noted that the Shelter policy did not contain a specific fellow employee exclusion. An “uninsured motor vehicle” was defined in the typical sense in the Shelter policy as “a motor vehicle not insured by a bodily injury liability bond or insurance policy applicable at the time of the accident, or if there is such, the company writing it denies coverage.” Although there was a policy issued to the employer for the vehicle in question, liability coverage had been denied. Hence, the vehicle was, by the policys definition, an uninsured motor vehicle. One should be wary of Barker v. H & J Transporters Inc., 837 S.W.2d 537 (Mo.App. 1992). In Barker the court held that one of the implicit underlying policies of the Workers Compensation Act is to prevent double recovery by injured employees. 287.010 R.S.Mo. Simlarly, in Thompson the insurer questioned the plaintiffs entitlement to double recovery, invoking policy language that coverage does not apply, “to the extent it would benefit any insurer of self-insurer under any workers compensation or disability benefits law or similar law.” Id. at 850. The court carefully noted that there was no evidence that the plaintiff/insured had enjoyed double recovery, and offered no further explanation of the evidence necessary to satisfy Shelters exclusion. As pointed out in the Alabama decision of State Farm Mut. Auto. Ins. Co. v. Carlton, 2001 WL 499076 (Ala. Civ. App. 2001), the majority of jurisdictions have declined to extend UM coverage to employees injured by co-workers, even when recovery was sought from the employees own policy. After citing a trio of Alabama cases permitting such recovery, the court in Carlton denied UM benefits to a man who had recovered workers compensation. While the case is arguable support for the general principle that workers compensation immunity does not defeat the insureds burden to demonstrate he is legally entitled to recover from the offending motorist, his “double recovery” of workers compensation benefits qualifies UM recovery. Perhaps Missouri claimants have a leg up in the “double recovery” battle when claiming entitlement to UM benefits from their own policies. Many jurisdictions have held that the right of an employer or workers compensation carrier to be reimbursed from an uninsured motorist policy depends on who procured the policy. Most courts have distinguished between whether the employee or the employer procured the policy. Where the employee does so, there is no right of reimbursement. Missouri courts draw no such distinction. Statutorily, a Missouri employer or workers compensation insurer has a right to receive proceeds of any settlement or judgment resulting from the exercise of any rights of recovery the injured worker has against any person or organization legally responsible for the bodily injury for which workers compensation payments are made. This has been interpreted in such a fashion as to deny subrogation for UM benefits. In short, a UM insurer is not a “third person” liable to the employer for injuries to its workers. Barker v. H & J Transporters Inc., 837 S.W.2d 537 (Mo.App. 1992). Does this distinction result in hope for future plaintiffs who claim entitlement to UM benefits for work-related injuries who have otherwise, like the Alabama plaintiff in Charlton, received workers compensation benefits? Since Missouri has no statutory prohibition against such double recovery, and has recognized an employees right to recover both workers compensation and UM benefits, the concerns expressed in Carlton and the dicta of Thompson v. Schlecter, appear unfounded. In summary, Missouri cases continue to look to the language of a given UM policy in deciding whether an injured worker is entitled to UM coverage, whether that coverage emanates from the workers own policy, or that of his employer. Key considerations are whether the immunity which may extend to a co-employee tortfeasor stands in the way of the injured partys ability to prove he is legally entitled to recover from a fellow employee. If immunity is not a bar, any argument that such recovery is duplicative, must be confronted with a long line of Missouri cases that permit such double recovery and decline to extend an employers subrogation interests to these contractual recoveries. 未保险驾车覆盖 THE IMPACT OF WORKERS COMPENSATION AND WORK-RELATED INJURIES 在工人赔偿的影响和与工作相关的伤害 By Timothy W. 作者 ： 唐伟 Monsees Monsees A person who is injured by a co-employee in an automobile accident while in the course of his or her employment may be entitled to recover under both a policy providing for uninsured motor vehicle coverage (UM) and under the workers compensation law. This situation raises several legal issues. 阿谁是共同受伤人的雇员在一次车祸中 ， 而在他或她受雇期间可能有权收回的政策下 ， 都没有保险的机动车辆保险（密歇根）提供 ， 根据工人赔偿法。这情况提出了一些法律问题。 First, in light of case law immunizing co-employees from legal liability under workers compensation, is the at-fault employee considered someone from whom the injured party is “legally entitled to recover?” Second, from whose uninsured motorist policy can an injured worker recover? Finally, may an injured employee recover both uninsured motor vehicle benefits and workers compensation? 首先，在合作的案例免疫法光员工，在工人赔偿的法律责任是在故障的员工认为他们的人从受害方是“法律上有权收回？”其次 ， 从驾车者的保险政策，可以一人受伤工人恢复？最后，受伤雇员追讨都没有投保机动车福利和工人补偿？ The Workers Compensation Law, 287.010 RSMo. et seq ., provides the exclusive remedy for employees against employers for injuries covered by its provisions. However, this immunity extends to employees of the employer in a more limited fashion. While suits against employees personally for breach of the duty to maintain a safe working environment are preempted by the workers compensation laws, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employers responsibility to provide a safe workplace. Gunnett v. Girardier Bldg. 工人赔偿法， 287.010 RSMo。 起 。，提供了对供其规定涉及雇主的雇员受伤的唯一补偿。然而，这种豁免权延伸到雇主的雇员更有限的方式。虽然对雇员个人诉讼为失职保持一个安全的工作环境是由工人补偿法抢占，雇员可以起诉一外 ， 雇主的责任范围肯定的疏忽行为同胞雇员提供一个安全的工作环境。Gunnett诉吉拉尔迪耶大厦。 And Realty Co . 70 SW3d 632 (Mo.App. ED, 2002). This raises the question, what is an “affirmative negligent act”? 和地产公司 。70 SW3d 632（Mo.App。教育，2002年）。这就提出了一个问题，什么是“肯定的疏忽行为”？ In State ex rel. 在国家前rel。 Taylor v. Wallace , 73 SW3d 620, 623 (Mo. 2002) the Court stated that, “the question of what constitutes an “affirmative negligent act” has not proven susceptible of reliable definition, and Missouri courts have essentially applied the rule on a case by case basis with close reference to the facts in each individual case.” Id . Without an “affirmative negligent act” a co-employee tortfeasor cannot be held liable, so the only way for an injured employee to collect for the negligence of an automobile tortfeasor may be to collect from an uninsured motorist policy. 泰勒诉华莱士 ，73 SW3d 620，623（2002年密苏里州），法院指出，“对什么是”肯定的疏忽行为“没有问题 ， 容易证明了可靠的定义，以及密苏里州法院基本上适用于规则按个别情况接近参照每个案件的事实。“ 同上 。没有一个”积极的疏忽行为“的公司雇员的侵权行为不承担赔偿责任，因此，对受伤雇员的唯一途径 ， 收集一个疏忽汽车案犯可能是收集驾车从保险政策。 Conventional wisdom has held that, due to the higher standard of care required of operators of motor vehicles, a fellow employee driver was similarly held to a higher standard of care than the general obligation of employers to provide a safe workplace. Operators of motor vehicles are held to the “highest degree of care.” Hansen v. James, 847 SW2d 476 (Mo. App. 1992); MAI 11.01 1996 Revision. Insurers have successfully argued, however, that no distinction should be made between torts arising out of accidents involving automobiles and those that do not. 传统观点认为，由于医疗水平较高的汽车，另一名雇员司机举行同样的照顾高于雇主的一般责任标准 ， 提供安全的工作场所经营者需要。机动车辆的运营商举行“最高的关心程度。” 詹姆斯汉森诉，847 SW2d 476（密苏里州应用。1992年）;麦11.01 1996年修订版。保险公司成功地抗辩说，但是，应该不分之间所产生的侵权行为作出事故涉及汽车和那些没有。 In State ex rel. 在国家前rel。 Taylor v. Wallace, supra, both the injured employee and the defendant were working for the same trash company. The plaintiff was holding on to the side of a trash truck and was swept from the side of the truck as it struck a mailbox.Plaintiff alleged that the defendant: 1) failed to keep a careful lookout; 2) carelessly and negligently struck a mailbox while driving; and 3) carelessly and negligently drove too close to a fixed object.Although plaintiff argued that the operator of the truck failed to exercise the highest degree of care, the court concluded the allegations were no greater in kind or degree than the general obligation of an operator of a motor vehicle on a public road. Accordingly, the drivers neglect did not constitute the kind of affirmative negligent act necessary to defeat the immunity of workers compensation. Of note, although the court cites three case examples to support its conclusion, none involve automobile collisions or a standard of care greater than ordinary negligence. Id. at 泰勒诉华莱士，前，无论是受伤雇员及被告正在努力为同一垃圾公司。原告持有的垃圾车的一侧 ， 并从车侧扫 ， 因为它取得一个邮箱。原告据称 ， 被告：1）未能保持谨慎了望2）胡乱疏忽邮箱击中驾车时; 3）草率和疏忽开车太接近一个固定的对象。虽然原告认为 ， 卡车的经营者无效的谨慎程度最高，法院得出结论的指控没有实物或大于1的汽车经营者的一般义务的程度更大的公共道路。因此，司机的疏忽并不构成失职行为的一种肯定必要击败工人的赔偿权。值得注意的是，尽管法庭列举三个案例来支持其结论，完全不涉及汽车碰撞或无人照顾的大于普通过失的标准。 同上。在 622, n. 622，注 7. 7。 The issue that many courts do not agree upon is whether this immunity defeats the burden of an injured claimant to demonstrate that the tortfeasor is someone from whom the claimant is legally entitled to recover, in accordance with the tenets of uninsured motorist laws and policies.Since several Missouri cases have held that an exclusion in a policy of automobile liability insurance for claims brought by injured fellow employees is not void as against public policy, irrespective of the Motor Vehicle Financial Responsibility Law (MVFRL), a claim for uninsured motorist benefits may be the only source of recovery, aside from workers compensation. 303.010 RS Mo. See, eg, Baker v. DePew, 860 SW2d 318 (Mo. 1993). 这个问题 ， 许多法院没有约定是 ， 这是否豁免失去了受伤的人的负担表明该案犯的人从他们的索赔在法律上有权收回按照保险驾车的法律和政策的原则。自密苏里州几个案件认为 ， 在一个汽车为受伤的员工们带来了不无效的政策 ， 对公众责任保险的索赔排斥，不论机动车财政责任法（MVFRL），一个驾驶福利保险索赔可能复苏的唯一来源，除了工人的赔偿。 303.010恏巴密苏里见，例如，贝克诉迪皮尤，860 SW2d 318（1993年密苏里州）。 Most courts that have considered the question have held that “legally entitled to recover” imports a condition precedent to the uninsured motorist insurers obligation to pay. For example, in F
展开阅读全文