汽車專業(yè)畢業(yè)設(shè)計翻譯中英文(全)apersonwhoisinjuredinanautomobileaccidentwhileinthe

1、UNINSURED MOTORIST COVERAGETHE IMPACT OF WORKERS COMPENSATION ANDWORK-RELATED INJURIESBy 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 vehi

2、cle coverage (UM) and under the workers compensation law. This situation raises several legal issues. First, in light of case law immunizing coemployees from legal liability under workers compensation, is the at-fault employee considered someone from whom the injured party is “ legallyentitled to re

3、cover? ” Second, from whose uninsured motorist policy can an injured worker recover? Finally, may an injured employee recover both uninsured motor vehicl e benefits and workers compensation?The Workers Compensation Law, 287.010R.S.Mo. et seq., provides the exclusive remedy for employees against empl

4、oyers 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 compensationlaws, an employee may s

5、ue 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.

6、 Wallace, 73 S.W.3d 620, 623 (Mo. 2002) the Court stated that, “ the question of what constitutes an“ affirmative negligent act” hassusceptible of reliable definition, and Missouri courts have essentially applied the rule on a case by case basis with close refere nee to the facts in each in dividual

7、 case. ” Id.Without an “ affirmative negligent act -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 unin sured motorist policy.Conven ti onal wisdom has held that, due to the higher

8、 sta ndard of care required of operators of motor vehicles, a fellow employee driver was similarly held to a higher sta ndard of care tha n the gen eral obligati on of employers to provide a safe workplace. Operators of motor vehicles are held to the“ highest degHeeise icareJames, ”847 S.W.2d 476 (M

9、o. App. 1992); MAI 11.01 1996 Revision. Insurers have successfully argued, however, that no distinction should be made between torts arising out of accide nts involving automobiles and those that do not.In State ex rel. Taylor v. Wallace, supra, both the injured employee and the defe ndant were work

10、i ng for the same trash compa ny. The pla in tiff was holdi ng on to the side of a trash truck and was swept from the side of the truck as it struck a mailbox. Plai ntiff alleged that the defe ndant: 1) failed to keep a careful lookout; 2) carelessly and negligently struck a mailbox while driving; a

11、nd 3) carelessly and negligently drove too close to a fixed object. Although pla in tiff argued that the operator of the truck failed to exercise the highest degree of care, the court con cluded the allegati ons were no greater in kind or degree tha n the gen eral obligatio n of an operator of a mot

12、or vehicle on a public road. Accord in gly, the driver n eglect did not con stitute the kind of affirmativenegligent act necessary to defeat the immunity of workers ompensation. Of note, although the court cites three case examples to support its conclusion, none involve automobile collisi ons or a

13、sta ndard of care greater tha n ordinary n eglige nceld. at 622, n. 7.The issue that many courts do not agree upon is whether this immun ity defeats the burde n of an injured claima nt to dem on strate that the tortfeasor is some one from whom the claimant is legally entitled to recover, in accordan

14、cewith the tenets of uninsured motorist laws and policies. Since several Missouri cases have held that an exclusion in a policy of automobile liability in sura nce for claims brought by injured fellow employees is not void as against public policy, irrespective of the Motor Vehicle Financial Resp on

15、 sibility Law (MVFRL), a claim for unin sured motorist ben efits may be the only source of recovery, aside from workers compensation. 303.01CR.S. Mo. See,e.g., Baker v. DePew, 860 S.W.2d 318 (Mo. 1993).Most courts that have con sidered the questi on have held that“ legally en titled torecover ” impo

16、rts a con diti on precede nt to the unin sured motorist in surer s obligaticpay. For example, in Fox v. Commercial Un io n In sura nce Co., 413 So.2d 679 (La.App.rd3 Cir. 1982), the court held that, since worker s compensation is the exclusive remedyfor an injured employee against a co-employee, the

17、 injured employee did not have a legally en forceable right to recover damages from the co-employee driver. Therefore, the injured worker was not“ legally en titled to recover.” The employee had bee n killed whiriding in an automobile operated by a co-worker, acting within the course and scope of hi

18、s employment. See also, Nobles v. Wo|f542 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 cout rdtsisftirnsguish from whose policy the injured employee is attempting to recover. The courts

19、have recognized four possible scenarios from which the injured employee might be able to recover: (1) the injured employee sown policy; (2) the injured employee semployer spolicy; (3) the tortfeasor/co-employee s policy; or(4) the partner of the injured employee. While the courts have suggested that

20、 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 benefit

21、s 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 n

22、oted 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 UpMolicy for claims brou

23、ght by injured employees, for the negligent acts of co-workers, was not void as against public policy.Similarly, in Thompson v. Schlechte,r 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

24、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, g

25、iving the insured protection he did not bargain for. Id. at 850, ci”ting 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. “ Thepurpose of the fe

26、llow servant exclusion is to separatethe 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 employers publliability insurance because they are already protected by the workmens co

27、mpensationstatute. 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 thanan employee of the insure

28、d. InKramer, 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 decisi

29、ons on this issue. Asarticulated by Judge Holliger, “ Thequestion 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 c

30、ourt reasoned further that, “ Referencesto “ liability” of the insured/employer in 303.190.5 seem clearly to refer to liability basedon status as an employer. Id. at”620. Since Mr. Kramers claims against the UM carrier were not, in any way, grounded on the employer status, his claim against the empl

31、oyer s UM policy was permitted.However, whe n determ ining whether or n ot the injured employee can collect fromhis or her own unin sured motorist policy (sce nario #1 above), at least one Missouri court has recog ni zed coverage. In Thomps on v. Schlechte, supra, as discussed here in above, the cou

32、rt declined to find UM coverage for the pl aintiff from his employer s automobilepolicy. However, the pla in tiff also sought recovery for his injuries from his own UM policy with Shelter Mutual In sura nee Compa ny. Most importa ntly, the court no ted that the Shelter policy did not con tai n a spe

33、cific fellow employee exclusi on. An“ unin suredmotor vehicle ” was defined in the typical sense in the Shelter policy as“ a motornot in sured by a bodily injury liability bond or in sura nee policy applicable at the time ofthe accide nt, or if there is such, the compa ny writ ing it denies coverage

34、.” Although therewas a policy issued to the employer for the vehicle in questi on liability coverage had been denied. Hence, the vehicle was, by the policy 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 cour

35、t held that one of the implicit un derly ing policies of the Workers Compensation Act is to prevent double recovery by injured employees.287.010 R.S.Mo.Simlarly, in Thompson the in surer questio ned the plai ntiff sen titleme nt to double recovery invoking policy Ian guage that coverage does not app

36、ly,“ to the exte nt it would ben efit any in surer of self-i nsurer un der any workers compe nsati on or disability ben efits law or similar law. Id. at ”50. The court carefullynoted that there was no evidence that the plaintiff/insured had enjoyed double recovery, and offered no further explanation

37、 of the evidence necessary to satisfy Shelters eAs 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 sough

38、t from the employee oswn 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

39、 insureds burdendemonstrate he is legally entitled to recover from the offending motorist, his “ double recovery ” of workers compensation benefits qualifies UM recovery.PerhapsMissouri claimants have a leg up in the “ double recovery ” battle when claiming entitlement to UM benefits from their own

40、policies. Many jurisdictions have held that the right of an employer or workers compensation carrier to be reimbursed from an uninsured motorist policy dependson who procured the policy. Most courts have distinguished between whether the employee or the employer procured the policy. Where the employ

41、ee 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

42、 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 perso liable to the employer for injuries to its workers

43、. Barker v. H & J Transporters Inc837 S.W.2d 537 (Mo.App. 1992).Does this dist in cti on result in hope for future plai ntiffs who claim en titleme nt to UM ben efits for work-related in juries who have otherwise, like the Alabama plai ntiff in Charlt on, received workers ompe nsati on ben efits? Si

44、nce Missouri has no statutory prohibition against such double recovery, and has recognized an employee right to recover both workers compe nsati on and UM ben efits, the concerns expresaeltbrm and thedicta of Thomps on v. Schlecter appear unfoun ded.In summary, Missouri cases continue to look to the

45、 Ianguage of a given UM policy in deciding whether an injured worker is entitled to UM coverage, whether that coverage ema nates from the worker own policy, or that of his employer. Key con siderati ons are whether the immu nity which may exte nd to a co-employee tortfeasor stands in the way of the

46、injured party s ability to prove he is legally entitled to recoverfrom a fellow employee. If immun ity is not a bar, any argume nt 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 subrogation i

47、nterests to these con tractual recoveries.未保險駕車覆蓋在工人賠償?shù)挠绊懞团c工作相關(guān)的傷害作者：唐偉 Monsees阿誰是共同受傷人的雇員在一次車禍中，而在他或她受雇期間可能有權(quán)收回的 政策下，都沒有保險的機(jī)動車輛保險（密歇根）提供 ，根據(jù)工人賠償法。這情 況提出了一些法律問題。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 者的保險政策，可以一人受傷工人恢復(fù)？最后，受傷雇員追討都沒有投保機(jī)動車福 利和工人補(bǔ)償？工人賠償法，287.010 RSM6 起。，提供了對供其規(guī)定涉及雇

48、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。雖然對雇員個人訴 訟為失職保持一個安全的工作環(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安全的工作環(huán)境。Gunnett訴吉拉爾迪耶大廈。和地產(chǎn)公司。70 SW3d 632 （ Mo.App。教育，2002年）。這就提出了一個問題，什么是 肯定的疏忽行為”在國家前rel。泰勒訴華萊士 ， 73 SW3d 620, 623（ 2002年密蘇里州），法院指出，對什么是”肯定的疏忽行為沒有問題，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)則按個別情況接近參照每個案件的事實。同上。

49、沒有一個”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，對受傷雇員 的唯一途徑，收集一個疏忽汽車案犯可能是收集駕車從保險政策。傳統(tǒng)觀點(diǎn)認(rèn)為，由于醫(yī)療水平較高的汽車，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)，提供安全的工作場所經(jīng)營者需要。機(jī)動車輛的運(yùn)營商舉行最高的關(guān)心程度?！闭材匪?jié)h森訴，847 SW2d 476 （密蘇里州應(yīng)用。1992年）；麥 11.01 1996年修訂版。保險公司成功地抗辯說，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和那些沒有。在國家前rel。 泰勒訴華萊士，前，無論是受傷雇員及被告正在努力為同一垃圾 公司。原告持有的垃圾車的一側(cè) ，并從

50、車側(cè)掃，因為它取得一個郵箱。原告據(jù) 稱，被告：1）未能保持謹(jǐn)慎了望2）胡亂疏忽郵箱擊中駕車時；3）草率和疏忽 開車太接近一個固定的對象。雖然原告認(rèn)為，卡車的經(jīng)營者無效的謹(jǐn)慎程度最高，法院得出結(jié)論的指控沒有實物或大于 1的汽車經(jīng)營者的一般義務(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，盡管法庭列舉三個案例來支持其結(jié)論，完全不涉及汽車碰撞或 無人照顧的大于普通過失的標(biāo)準(zhǔn)。同上。在 622,注 7。這個問題，許多法院沒有約定是，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)收回按照保險駕車的法律和政策的原則。自密 蘇

51、里州幾個案件認(rèn)為，在一個汽車為受傷的員工們帶來了不無效的政策，對公眾責(zé)任保險的索賠排斥，不論機(jī)動車財政責(zé)任法（ MVFRL ），個駕駛福利保險索賠可能復(fù)蘇的唯一來源，除了工人的賠償。303.010恏巴密蘇里見，例如，貝克訴迪皮尤，860 SW2d 318（ 1993年密蘇里州）。大部分已經(jīng)審議了這個問題法院認(rèn)為，法律上有權(quán)收回”進(jìn)口先決條件駕車保險公司保險支付的義務(wù)。例如，在 ?？怂乖V 商業(yè)聯(lián)盟保險有限公司。，413 So.2d 679 （ La.App。第三次循環(huán)線。1982年），法院認(rèn)為，由于工人的賠償是針對 該公司受傷雇員唯一救濟(jì)，雇員，雇員不受傷有法律效力的權(quán)利，收回合作雇員司機(jī)賠償。

52、因此，受傷工人不是 法律上有權(quán)收回。”該雇員被打死，而騎在一個 同事辦的汽車，在過程中行事和他的就業(yè)范圍。參見，貴族訴狼，542 NE2d 1112（俄亥俄州應(yīng)用。1989年）。在密蘇里州法院的問題是發(fā)展中國家。沒有密蘇里州的情況可以作為金標(biāo)準(zhǔn)在這個問題上”引。相反，首先從密蘇里州法院的政策區(qū)別受傷雇員試圖恢復(fù)。法院已 經(jīng)認(rèn)識到四個可能的情況從中受傷雇員可能無法收回：（1）受傷雇員自己的政策;（二）該雇員的雇主的政策；（3）侵權(quán)者/合作雇員氏的政策；或（4）該受傷雇員的 合作伙伴。雖然該法院認(rèn)為，從上述四個來源的任何復(fù)蘇是可能的，密蘇里州法 院只有解決方案（1）和（2）。雖然密歇根覆蓋情況，歸

53、根結(jié)底是保險合同的建設(shè)中的作用，密蘇里州法院一 直拒絕允許UM的利益回收發(fā)給雇主（方案# 2段）的政策。一個垃圾車車主的雇 員受傷西摩訴雷克伍德山協(xié)會，927西南二維405 （密蘇里州應(yīng)用。署1996年）， 當(dāng)樹上的卡車運(yùn)營商的支持。雇主曾與俄亥俄州險密歇根大學(xué)的政策。法院指出， MVFRL，303.010以下。，明確拒絕延長的人身傷害或?qū)蜆I(yè)從事被保險人死 亡，而雇員占密歇根覆蓋的要求賠償責(zé)任。被保險人。因此，在雇主的密歇根大學(xué)為受傷的雇員提出的索賠政策排斥，對公司的疏忽行為，工人，不 作為無效違反公共政策。同樣，在 Thompson訴施累希特，43 SW3d 847，848 （Mo.App

54、。教育，2000 年），雇員受傷，而駕駛他的雇主擁有的卡車司機(jī)，他是從后面擊中了共同駕 駛的卡車雇員。受傷雇員作出了對他的雇主密歇根大學(xué)的政策主張。法院拒絕承保 和理智的，“一f我們要認(rèn)為原告應(yīng)屬于保險的駕車者的覆蓋范圍，效果將是無 效的從責(zé)任險一位同事排斥，使被保險人的保護(hù)，他并沒有討價還價的。伺上。850,理由是408西摩，上文。取消的同胞雇員的賠償責(zé)任排除，不是在法院愿意做貝克。訴 迪皮尤，前，法院討論了排除的重要性。該研究員仆人排除的目的是分開的法律責(zé)任，雇主的賠償責(zé)任向雇員向公眾。它免除了繁重的投保雇主的要求根據(jù)雇主的公眾責(zé)任保險，雇員，因為他們已受到了工人的賠 償法的保護(hù)。同上。為322。然而，在克萊默訴保險北美，54 SW3d 613 （密蘇里州應(yīng)用。西部數(shù)據(jù)2001年）