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The Rough Notes Company Inc.



June 25
08:04 2021

He fought the law …

Kent Ryser and two of his co-workers, Linda Forster and Sherri Babion, were returning together from a work trip in Babion’s vehicle. With Babion’s permission, Forster was driving, and Ryser was a passenger in the back seat. During this trip, all three were acting within the course and scope of their employment.

Forster fell asleep at the wheel and lost control of the vehicle, after which the vehicle spun off the road and struck an embankment and a fence before coming to rest. Ryser suffered significant injuries.

Because the crash occurred while Ryser was on the job, he received workers compensation benefits. Ryser also sought and received uninsured motorist/underinsured motorist (UM/UIM) benefits from his own auto policy, on the ground that the state workers compensation act (WCA) co-employee immunity rule effectively rendered Forster an uninsured motorist.

In addition, Ryser sought UM/UIM benefits from Babion’s auto insurer, Shelter Mutual Insurance Company. In his view, he was entitled to such benefits because, as an authorized passenger in the vehicle, he was an insured under the Shelter policy. Shelter denied Ryser’s claim, and Ryser brought an action against Shelter to recover UM/UIM benefits under the Shelter policy.

Both parties moved for summary judgment, and neither party disputed Forster’s fault or Ryser’s damages.

Ryser contended that, while acting within the course and scope of her employment, Forster was effectively uninsured and therefore Ryser, as an insured under Babion’s Shelter policy, was entitled to seek UM/UIM benefits from Shelter. Shelter responded that, under the plain language of its policy, it was required to pay UM/UIM benefits only when an insured is “legally entitled to recover” or “legally entitled to collect” from the owner or operator of the vehicle. Because the WCA rendered Forster immune from liability, Shelter contended that Ryser was not legally entitled to recover or collect from her. Thus, in Shelter’s view, Babion’s policy did not provide coverage for Ryser’s UM/UIM claim.

The district court agreed with Shelter and granted its summary judgment motion. Ryser appealed, arguing that the phrases “legally entitled to recover” and “legally entitled to collect” required only that the insured be able to establish fault on the part of the uninsured motorist and the extent of the insured’s resulting damages.

A division of the court of appeals ultimately disagreed and in a unanimous, published decision affirmed the district court’s grant of summary judgment. The division concluded that because the WCA co-employee immunity rule precluded Ryser from recovering damages from Forster, under the plain language of Babion’s policy with Shelter, he was not entitled to UM/UIM benefits (because he was not “legally entitled to recover damages” from Forster). In reaching this conclusion, the division found persuasive the view of a number of out-of-state authorities and legal commentators that “legally entitled to collect” and “legally entitled to recover,” as those phrases are used in statutes, require that the insured show not only that he or she suffered damages caused by the fault of an uninsured motorist, but also that the insured’s action against the uninsured motorist was not barred under substantive law (i.e., that the motorist was legally subject to liability).

Ryser petitioned the state supreme court for review, and the court granted his petition.

On appeal, the supreme court of Colorado cited provisions of the UM/UIM statute and the WCA to reiterate the established proposition that the WCA “provides the exclusive remedy to a covered employee for injuries sustained while the employee is performing services arising in the course of his or her employment.”

The court stated that employers that comply with the requirements of the WCA are therefore immune from common law liability related to on-the-job injuries. In addition, the court said, it had interpreted the WCA exclusivity provisions to extend immunity from any common law liability arising out of a work-related injury to the injured worker’s co-employees. Further, the immunity granted to an employer under the WCA also extends to the employer’s insurer.

Accordingly, the court concluded that Ryser’s claim against his co-worker Babion’s insurer, Shelter, was barred by the WCA’s exclusivity and the related co-employee immunity rule, and that his claim failed as a matter of law. The court said summary judgment was properly entered in Shelter’s favor.

Ryser v. Shelter Mutual Insurance Company—Supreme Court of Colorado—February 16, 2021—No. 19SC530.

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