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 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 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 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 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 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 insurer’s obligation to pay. For example, in Fox v. Commercial Union Insurance Co., 413 So.2d 679 (La.App. 3 rd Cir. 1982), the court held that, since worker’s 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 employee’s own policy; (2) the injured employee’s employer’s policy; (3) the tortfeasor/co-employee’s 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 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 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, “[I]f 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 employer’s 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 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 filed 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. 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, “[R]eferences 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. 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 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 employer’s 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 policy’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. §287.010 R.S.Mo. Similarly, 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.” 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 Shelter’s 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 employee’s 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 insured’s 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 employee’s right to recover both workers’ compensation and UM benefits, the concerns expressed in Carlton and thedicta 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 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 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 employer’s subrogation interests to these contractual recoveries.
If you or a family member were recently injured at work, contact the Kansas City workplace injury lawyers of Monsees & Mayer P.C today.