In the recent decision of Ryser v. Shelter Mutual Insurance, 2021 CO 11, the Colorado Supreme Court answered the question of whether an injured passenger riding in a vehicle negligently driven by a co-worker, and owned by another co-worker, when all three are acting within the course and scope of their employment, may recover uninsured/underinsured (“UM/UIM”) benefits under the vehicle owner's insurance police.
The answer is NO.
This is because the Workers' Compensation Act of Colorado (“WCA”) makes the WCA the exclusive remedy for personal injury claims against employers and co-workers when the injury happens on the job. It means injured plaintiffs can receive medical and wage loss benefits through workers' compensation, but they cannot sue their employers or co-workers in a separate civil action.
In Ryser, the plaintiff was riding in car owned by a co-worker and driven by another co-worker while all three were acting in the course and scope of their employment. The driver fell asleep at the wheel and crashed into an embankment causing serious injuries to the plaintiff. The injured plaintiff filed for workers compensation benefits. He also received UM/UIM benefits under his own auto insurance policy because the WCA's co-worker immunity rule effectively rendered the at-fault driver an uninsured motorist.
Ryser then sought benefits from the car owner's UM/UIM insurance policy. The carrier, Shelter Mutual Insurance (“Shelter”), denied the claim on the basis that the car owner was a co-worker and was therefore immune from personal liability under the WCA.
Although plaintiff and Shelter both believed the case turned on the meaning of the terms “legally entitled to recover” and “legally entitled to collect”, the Supreme Court decided it did not matter, for purposes of this case, which interpretation was correct.
Instead, the Court focused on “whether the WCA's co-employee immunity rule bars Ryser from recovering UM/UIM benefits from his co-worker Babion's insurer, Shelter.” The Court concluded that it does:
… the WCA's exclusivity provisions abolish any causes of action related to personal injuries like those at issue here, § 8-41-102, and, upon participating in the workers' compensation system, all employees “surrender … their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries, “ § 8-41-104. In addition, it has long been established that the immunity created by these provisions extends as well to an injured worker's co-employees. See Kelley, 890 P.2d at 1165; Kandt, 645 P.2d at 1305.
While the decision is mostly disappointing to plaintiffs, the Supreme Court did confirm that plaintiff's in Ryser's position could still make UM/UIM claims under their own insurance policies. Also, had the Ryser crash been caused by a third party who was not a co-worker, for example another driver on the road, the injured plaintiff would still be able to sue the at-fault driver and make claims against the at-fault driver's liability insurance coverage.
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