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1、UNINSURED MOTORIST COVERAGE THE IMPACT OF WORKERS’ COMPENSATION AND WORK-RELATED INJURIES By Timothy W. 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 unins

2、ured 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 “l(fā)eg

3、ally 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 reme

4、dy 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’ com

5、pensation laws, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer’s 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 neglig

6、ent 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 wit

7、h 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

8、. 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

9、 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. Taylo

10、r 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 lo

11、okout; 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 ki

12、nd or degree than the general obligation of an operator of a motor vehicle on a public road. Accordingly, the driver’s 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 t

13、o 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 fro

14、m 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 pub

15、lic 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 conside

16、red the question have held that “l(fā)egally entitled to recover” imports a condition precedent to the uninsured motorist insurer’s 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 worker’s compensation is the ex

17、clusive 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 “l(fā)egally entitled to recover.” The employee had been killed while riding in an automobil

18、e 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 distingui

19、sh 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 employee’s own policy; (2) the injured employee’s employer’s policy; (3) the tortfeasor/co-employee’s poli

20、cy; 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 insuranc

21、e 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 th

22、e 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 “l(fā)iability on account of bodily injury or death of an employee of the insured while engaged in the employme

23、nt . . . of the insured.” As such, the exclusion in the employer’s 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 injur

24、ed 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, “[I]f we were to hold that [plaintiff] should fall within uninsured

25、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 willi

26、ng 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 employer’s liability to his employees from that of his liability to the general public. It relieves the employer of the onerous requirement of i

27、nsuring employees under the employer’s public liability insurance because they are already protected by the workmen’s 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 fi

28、led by an injured worker against his employer’s 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. Judg

29、e 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 mo

30、torist 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, “[R]eferences to “l(fā)iability” of the insured/employer in § 303.190.5 seem clearly to refer to liability based on status as an employer.

31、” Id. at 620. Since Mr. Kramer’s claims against the UM carrier were not, in any way, grounded on the employer’s status, his claim against the employer’s UM policy was permitted. However, when determining whether or not the injured employee can collect from his or her own uninsured motorist po

32、licy (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 employer’s automobile policy. However, the plaintiff also sought recovery for his injuries fr

33、om 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 bodil

34、y 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 poli

35、cy’s 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

36、.010 R.S.Mo. Simlarly, in Thompson the insurer questioned the plaintiff’s 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.” I

37、d. 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 Shelter’s exclusion. As pointed out in the Alabama decision of State Farm Mut. Auto. Ins. Co. v. Carlto

38、n, 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 employee’s own policy. After citing a trio of Alabama cases permitting such recovery, the court in Carlton denied UM

39、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 insured’s burden to demonstrate he is legally entitled to recover from the offending motorist, his “double recovery” of wor

40、kers’ 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 reimbu

41、rsed 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

42、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

43、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 res

44、ult 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 emplo

45、yee’s 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

46、 coverage, whether that coverage emanates from the worker’s 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 party’s ability to prove he is legally entitled to recover from a fellow employe

47、e. 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 employer’s subrogation interests to these contractual recoveries. 未保險(xiǎn)駕車(chē)覆蓋 THE IMPACT OF WORKERS' CO

48、MPENSATION AND WORK-RELATED INJURIES 在工人賠償?shù)挠绊懞团c工作相關(guān)的傷害 By Timothy W. 作者 ： 唐偉 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 covera

49、ge (UM) and under the workers' compensation law.? This situation raises several legal issues. 阿誰(shuí)是共同受傷人的雇員在一次車(chē)禍中 ， 而在他或她受雇期間可能有權(quán)收回的政策下 ， 都沒(méi)有保險(xiǎn)的機(jī)動(dòng)車(chē)輛保險(xiǎn)（密歇根）提供 ， 根據(jù)工人賠償法。這情況提出了一些法律問(wèn)題。 First, in light of case law immunizing co-employees from legal liability under workers' compensation, is the at-fault em

50、ployee considered someone from whom the injured party is “l(fā)egally 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員工，在工人賠償?shù)姆韶?zé)任是

51、在故障的員工認(rèn)為他們的人從受害方是“法律上有權(quán)收回？”其次 ， 從駕車(chē)者的保險(xiǎn)政策，可以一人受傷工人恢復(fù)？最后，受傷雇員追討都沒(méi)有投保機(jī)動(dòng)車(chē)福利和工人補(bǔ)償？ 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

52、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 employer's responsibility t

53、o provide a safe workplace. Gunnett v. Girardier Bldg. 工人賠償法，§ 287.010 RSMo。 起 。，提供了對(duì)供其規(guī)定涉及雇主的雇員受傷的唯一補(bǔ)償。然而，這種豁免權(quán)延伸到雇主的雇員更有限的方式。雖然對(duì)雇員個(gè)人訴訟為失職保持一個(gè)安全的工作環(huán)境是由工人補(bǔ)償法搶占，雇員可以起訴一外 ， 雇主的責(zé)任范圍肯定的疏忽行為同胞雇員提供一個(gè)安全的工作環(huán)境。Gunnett訴吉拉爾迪耶大廈。 And Realty Co . 70 SW3d 632 (Mo.App. ED, 2002).? This raises the question, what is

54、 an “affirmative negligent act”? 和地產(chǎn)公司 。70 SW3d 632（Mo.App。教育，2002年）。這就提出了一個(gè)問(wèn)題，什么是“肯定的疏忽行為”？ In State ex rel. 在國(guó)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 defi

55、nition, 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 neg

56、ligence of an automobile tortfeasor may be to collect from an uninsured motorist policy. 泰勒訴華萊士 ，73 SW3d 620，623（2002年密蘇里州），法院指出，“對(duì)什么是”肯定的疏忽行為“沒(méi)有問(wèn)題 ， 容易證明了可靠的定義，以及密蘇里州法院基本上適用于規(guī)則按個(gè)別情況接近參照每個(gè)案件的事實(shí)?！?同上 。沒(méi)有一個(gè)”積極的疏忽行為“的公司雇員的侵權(quán)行為不承擔(dān)賠償責(zé)任，因此，對(duì)受傷雇員的唯一途徑 ， 收集一個(gè)疏忽汽車(chē)案犯可能是收集駕車(chē)從保險(xiǎn)政策。 Conventional wisdom has hel

57、d 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.” Ha

58、nsen 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. 傳統(tǒng)觀點(diǎn)認(rèn)為，由于醫(yī)療水平較高的汽車(chē)，另一名雇員司機(jī)舉行同樣的照顧高于雇主的一般責(zé)任標(biāo)準(zhǔn) ， 提供安全的工作場(chǎng)所經(jīng)營(yíng)者需要。機(jī)動(dòng)

59、車(chē)輛的運(yùn)營(yíng)商舉行“最高的關(guān)心程度。” 詹姆斯?jié)h森訴，847 SW2d 476（密蘇里州應(yīng)用。1992年）;麥11.01 [1996年修訂版]。保險(xiǎn)公司成功地抗辯說(shuō)，但是，應(yīng)該不分之間所產(chǎn)生的侵權(quán)行為作出事故涉及汽車(chē)和那些沒(méi)有。 In State ex rel. 在國(guó)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

60、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 plainti

61、ff 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 driver's neglect did not constitute the kind

62、 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 泰勒訴華萊士，前，無(wú)論是受傷雇員及被告正在努力為同一垃圾公司。

63、原告持有的垃圾車(chē)的一側(cè) ， 并從車(chē)側(cè)掃 ， 因?yàn)樗〉靡粋€(gè)郵箱。原告據(jù)稱(chēng) ， 被告：1）未能保持謹(jǐn)慎了望2）胡亂疏忽郵箱擊中駕車(chē)時(shí); 3）草率和疏忽開(kāi)車(chē)太接近一個(gè)固定的對(duì)象。雖然原告認(rèn)為 ， 卡車(chē)的經(jīng)營(yíng)者無(wú)效的謹(jǐn)慎程度最高，法院得出結(jié)論的指控沒(méi)有實(shí)物或大于1的汽車(chē)經(jīng)營(yíng)者的一般義務(wù)的程度更大的公共道路。因此，司機(jī)的疏忽并不構(gòu)成失職行為的一種肯定必要擊敗工人的賠償權(quán)。值得注意的是，盡管法庭列舉三個(gè)案例來(lái)支持其結(jié)論，完全不涉及汽車(chē)碰撞或無(wú)人照顧的大于普通過(guò)失的標(biāo)準(zhǔn)。 同上。在 622, n. 622，注 7. 7。 The issue that many courts do not agree

64、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

65、 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'

66、compensation.? §303.010 RS Mo. See, eg, Baker v. DePew, 860 SW2d 318 (Mo. 1993). 這個(gè)問(wèn)題 ， 許多法院沒(méi)有約定是 ， 這是否豁免失去了受傷的人的負(fù)擔(dān)表明該案犯的人從他們的索賠在法律上有權(quán)收回按照保險(xiǎn)駕車(chē)的法律和政策的原則。自密蘇里州幾個(gè)案件認(rèn)為 ， 在一個(gè)汽車(chē)為受傷的員工們帶來(lái)了不無(wú)效的政策 ， 對(duì)公眾責(zé)任保險(xiǎn)的索賠排斥，不論機(jī)動(dòng)車(chē)財(cái)政責(zé)任法（MVFRL），一個(gè)駕駛福利保險(xiǎn)索賠可能復(fù)蘇的唯一來(lái)源，除了工人的賠償?！?303.010恏巴密蘇里見(jiàn)，例如，貝克訴迪皮尤，860 SW2d 318（1993年密蘇里州）。 ? ? Most courts that have considered the question have held that “l(fā)egally entitled to recover” imports a condition precedent to the uninsured motorist insurer's obligation to pay.? For example, in F