We revisit an issue that we dealt with in Berger v. H.P. Hood, Inc.,
In April, 1987, Richard Figaratto was injured in the scope of his employment by Atlas Oil Corporation (Atlas) when a vehicle operated by a negligent third party struck the Atlas vehicle in which Richard was riding. The plaintiff insurer had issued a business automobile policy to Petroleum Heat and Power Co., Inc., the parent company of Atlas. Atlas was a named insured under that policy which provided uninsured and underinsured motorist (UM) coverage of $1,000,000. Richard settled his claim against the third-party tortfeasor for $10,000, the maximum coverage available. Richard received workers’ compensation benefits from Atlas’s compensation carrier. An arbitration panel concluded that Richard’s damages were $400,000, that his wife’s damages were $60,000, and ruled on no other issue.
The plaintiff insurer commenced this action in January, 1993, initially seeking a determination of what offsets would be allowable against any obligation to pay UM benefits. About one month after this court’s decision in the Berger case, the insurer was allowed to amend its complaint to assert that it had no obligation at all to pay UM benefits to the claimants. We allowed the claimants’ application for direct appellate review of the judgment in favor of the insurer that denied the claimants any UM benefits.
The claimants’ argument, raised here for the first time, that the insurer is barred from asserting its position because it failed to challenge the arbitration award in a timely fashion (see G. L. c. 251, §§ 12, 13 [1994 ed.]) lacks merit. The arbitration concerned only the amount of the claimants’ damages caused by the third-party tortfeasor, not the extent of the insurer’s obligation. Moreover, the claimants did not oppose as belated the insurer’s motion to amend its complaint to raise the issue of the exclusivity of the claimants’ workers’ compensation remedies. The merits of the insurer’s exclusivity claim are properly before the court.
In Berger v. H.P. Hood, Inc., supra, this court considered,
In our Berger opinion, we recognized a split of authority on the question of an injured employee’s right to recover UM benefits from an employer. Id. at 655 & n.8. We accepted the position of the Supreme Court of Connecticut in Bouley v. Norwich,
On the same day that the Bou lev case was decided, the Connecticut court also held that an employee who was injured in an employer’s motor vehicle, while in the course of his employment, was precluded by the exclusivity provision of the Connecticut workers’ compensation law from collecting UM benefits under his employer’s automobile insurance policy. CNA Ins. Co. v. Colman,
As a matter of fair and equal treatment, a person injured in the course of employment while in a motor vehicle of the employer need not obtain any greater insurance benefits than another person sustaining a similar injury in the course of employment but not in a motor vehicle of the employer. The cost of UM coverage for employers would be substantially higher than otherwise if that coverage in a standard policy applied to employees’ on-the-job motor vehicle injuries. That
We decline to abandon the position that we so recently took in the Berger case. An employee injured on the job by an underinsured third person is not permitted to recover UM benefits provided under a standard policy by an employer’s motor vehicle insurer. There are, we grant, arguments in support of a contrary answer. The insurance coverage involved here, UM coverage, does not concern the employer’s liability and hence could be taken as being unrelated to the reach of the exclusivity provision of the Workers’ Compensation Act. We rejected this argument in our Berger opinion essentially because the claim asserted was for personal injury. See Berger v. H.P.Hood, Inc., supra at 655. We are persuaded to maintain our position because of the legislative intention that UM protection should help certain persons who lack adequate insurance protection. The plaintiff is not such a person. If there is to be a change, it is for the Legislature to make. See id. at 656 (“The exclusivity provision has been the cornerstone of our Workers’ Compensation Act. Our exclusivity provision is very broad. The Legislature has had opportunities to narrow its scope, and has not done so”).
We see no reason why the rule that we announced in the Berger case and reaffirm here should not apply to this case. That principle applied to the parties in the Berger case, and it should do so similarly here.
We add three points. First, no meaningful distinction from the Berger case exists on the ground that the insurance policy involved here (in which the employer was a named insured) was purchased by the employer’s parent company. Second, we would not extend the bar imposed by the exclusivity provision of the Workers’ Compensation Act to make ineffective UM coverage (or any other coverage) that an employer explicitly purchased for the purpose of providing UM coverage (or any other coverage) to employees injured in the course
Judgment affirmed.
Notes
The employee in Berger v. H.P. Hood, Inc.,
The following cases concerning an employee injured in a work-related motor vehicle accident hold that the exclusivity provision of the jurisdiction’s workers’ compensation law bars an employee’s recovery from either a self-insured employer or under an employer’s UM insurance policy. Gullett v. Brown,
Other jurisdictions have held that their respective workers’ compensation exclusivity provisions do not bar an employee’s recovery under an employer’s UM insurance policy or under an employer’s no-fault insurance policy. See Mathis v. Interstate Motor Freight Sys.,
In our recent opinion in Mayo v. Aetna Casualty & Sur. Co.,