Deller v. Naymick

342 S.E.2d 73, 176 W. Va. 108

• Court: West Virginia Supreme Court
• Decided: April 4, 1986
• Docket: CC950
• Status: Published

Opinions

McHUGH, Justice:

This case is before this Court upon certified questions from the Circuit Court of Hancock County, West Virginia. It presents questions as to the applicability of coemployee immunity to a doctor employed by a subscriber to the Workers’ Compensation Fund or by a self-insured employer and the effect, if any, of the carrying of liability insurance on such immunity.

Frederick H. Deller, one of the plaintiffs herein¹ [hereinafter, “the injured employee”], suffered a minor knee injury in the course of and resulting from employment with Weirton Steel Division of National Steel Corporation,² [hereinafter, “the employer”]. The injured employee was immediately treated at the employer’s dispensary for the job-related injury by the defendant, George Naymick, M.D., a duly licensed physician [hereinafter, “the doctor”]. The doctor worked, as a salaried employee, eight hours a day, Monday through Friday, at the employer’s dispensary. The dispensary for employees was staffed by the doctor; the medical director (a physician) who supervised him; one other full-time and one part-time physician; and 16 nurses (normally six of whom worked day shift). The doctor was also employed as a physician for an hour a day, two days a week, by another manufacturing company. He also had a limited private practice while not acting as a doctor for the two companies.

The injured employee later received workers’ compensation for the knee injury. Thereafter, the injured employee brought this medical malpractice action against the doctor, alleging that the doctor had re-used the same hypodermic syringe on at least five occasions, causing osteomyelitis of the knee. The injured employee did not include the employer as a defendant.

Upon deposition the doctor admitted that, in a medical sense, a physician/patient relationship arises when he performs his medical services for the employer, and that, although the employer has the right to administrative supervision over him, he is not subject to the employer’s control professionally. He has his own medical malpractice insurance, and the employer has liability insurance. Both of these policies expressly exclude coverage, though, when workers’ compensation is applicable to compensate the person injured.

The doctor’s motion, under Rule 12(b)(6), W. Va.R.Civ.P., to dismiss the complaint for failure to state a claim upon which relief can be granted was denied by the trial court. The motion to dismiss was based upon the alleged immunity from suit provided by W.Va.Code, 23-2-6a [1949].³ Upon the joint motion of the parties the trial court certified two questions to this Court (paraphrased by us):⁴

(1) is a full-time, salaried doctor employed by a subscriber to the Workers’ Compensation Fund or by a self-insured employer⁵ subject to a coemployee’s medical malpractice action, because of the “dual capacity” doctrine, despite the provisions of W.Va.Code, 23-2-6a [1949]?

(2) is the immunity from tort liability provided by W. Va. Code, 23-2-6a [1949] inapplicable to the extent that the doctor employed by a subscriber to the Workers’ Compensation Fund or by a self-insured employer is covered by liability insurance?

The trial court answered the first question negatively but answered the second question affirmatively. We agree with the first conclusion but disagree with the second conclusion.

I. Coemployee Immunity

“The Workmen’s [Workers’] Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system.” Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 700, 246 S.E.2d 907, 911 (1978) (emphasis in original). “The benefits of this [statutory] system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits.” Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983). Workers’ compensation is the exclusive remedy against a coemployee when he acts in furtherance of the employer’s business and does not inflict an injury with deliberate intention. See W.Va.Code, 23-2-6a [1949], supra, n. 3.

The immunity from tort liability provided by W.Va.Code, 23-2-6a [1949] to, among others, coemployees is the same as the immunity from tort liability provided by W.Va.Code, 23-2-6 [1974] to an employer. See Bennett v. Buckner, 150 W.Va. 648, 654, 149 S.E.2d 201, 205 (1966). This statutory immunity of a coemployee is not violative of the due process provisions of the State and Federal Constitutions because, like the employer, a coemployee is involved in a compromise of rights; among employees, the quid pro quo is that each employee surrenders his common law right to bring tort actions against other employees in return for immunity to their tort suits. See Crawford v. Parsons, 141 W.Va. 752, 759, 92 S.E.2d 913, 917 (1956). Moreover, a person may be a coemployee, for the purpose of immunity under W.Va.Code, 23-2-6a [1949], even though he is employed to perform a different task in a different place than the injured employee. See Bennett v. Buckner, supra, 150 W.Va. at 652, 149 S.E.2d at 203.

W.Va.Code, 23-2-6a [1949] applies when the person causing the ’ injury to or the death of an employee (1) is an officer, manager, agent, representative or employee of the employer; (2) is acting in furtherance of the employer’s business; and (3) does not inflict an injury with deliberate intention. In this case there is no allegation of deliberate intention; instead, there is an allegation of negligence. The other two requirements for statutory immunity from liability are met in this case.

The doctor herein is an “employee.” W.Va.Code, 23-2-la [1975]⁶ contains the comprehensive statutory definition of “employees” for purposes of workers’ compensation. “ ‘Employee,’ the term used in our statute \W.Va.Code, 23-2-la [1975]], is a broader term than ‘workman’ [‘worker’] and is applicable to all persons in the service of the employer, [citation omitted] The breadth of the term may be limited by statutory exception.” West Virginia Coal & Coke Corp. v. State Compensation Commissioner, 116 W.Va. 701, 704, 182 S.E. 826, 828 (1935). Ordinarily, a member of a profession is not considered to be an “employee,” within the meaning of workers’ compensation laws, because he usually provides his services for a limited purpose and only for particular transactions. Id., 116 W.Va. at 704, 182 S.E. at 827-28. On the other hand, a professional person is an “employee” for workers’ compensation purposes when he or she provides his or her services “to an employer largely to the exclusion of otherwise special employment, for a certain fixed and determined period, at a regular salary, and hold[s] [himself or herself] in readiness at all times to serve [his or her] employer[.]” Id., 116 W.Va. at 704,182 S.E. at 828. Such is the case here. West Virginia Coal & Coke, supra, contains this holding in syllabus point 3:

Where there is a contract of employment between a physician and a subscriber to the Workmen’s [Workers’] Compensation Fund whereby the physician, for stipulated remuneration, undertakes to render professional service to employees of such subscriber for a definite period, and places his services and professional ability at the call of his employer, the physician will be considered an employee within the meaning of the Workmen’s [Workers’] Compensation Act.

In addition to being an “employee” for the purpose of immunity from liability under W.Va.Code, 23-2-6a [1949], the doctor herein was “acting in furtherance of the employer’s business” at the time in question as provided by such statute. “[The doctor’s] services, which were rendered . in furtherance of the employer’s business, under express authority of the employer, ... , are the employer’s acts.” Hinkelman v. Wheeling Steel Corp., 114 W.Va. 269, 270, 171 S.E. 538, 539 (1933).⁷ The sole syllabus point of Hinkelman is controlling here:

If a doctor, who is employed by a subscriber to the Workmen’s [Workers’] Compensation Fund to render medical and surgical aid and treatment to its employees, is so unskil[l]ful and negligent in his treatment of an employee, injured in the course of and resulting from his employment, that the injury is aggravated thereby, such action on the part of the doctor comes within the [Workers’] Compensation Act. Therefore, under such a state of facts, an action is not maintainable against the doctor.

The lead opinion in Jones v. Laird Foundation, Inc., 156 W.Va. 479, 484, 195 S.E.2d 821, 825 (1973), involving a non-employee doctor’s aggravation of a workers’ compensable injury, recognizes that “[s]ince this last extension of immunity in 1949 [by W.Va.Code, 23-2-6a], the total statutory grant of [coemployee] immunity is clear and unambiguous.” Being clear and unambiguous, the legislative intent expressed in this statute should be applied and not construed. “ Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.’ Syl. pt. 1, State v. Warner, 172 W.Va. 502, 308 S.E.2d 142 (1983).” Syl. pt. 1, State v. Highland, 174 W.Va. 525, 327 S.E.2d 703 (1985). “That the parties disagree as to the meaning or the applicability of [a statutory] provision does not of itself render [the] provision ambiguous or of doubtful, uncertain or obscure meaning.” Estate of Resseger v. Battle, 152 W.Va. 216, 220, 161 S.E.2d 257, 260 (1968). “Rules of interpretation are resorted to for the purpose of resolving an ambiguity, not for the purpose of creating it.” Crockett v. Andrews, 153 W.Va. 714, 719, 172 S.E.2d 384, 387 (1970).

Thus, the doctor is clearly immunized from liability under the terms of W.Va. Code, 23-2-6a [1949]. Nothing stated in this opinion would preclude the legislature from enacting a statute on the basis of an exception to coemployee immunity which would subject doctors or other “professional” employees to tort liability.⁸

The injured employee in the case now before this Court invites us to carve out an exception to the statutory coemployee immunity from tort liability based upon the “dual capacity” doctrine. We decline the invitation.

The so-called “dual capacity” doctrine or “dual persona ” doctrine has been defined succinctly as follows: “An employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.” 2A A. Larson, The Law of Workmen’s Compensation § 72.81 (1983) [hereinafter, Larson].9 Note that the “dual capacity” or “dual persona ” doctrine is applied by this definition to an employer, not to a coemployee.

When, as in this case, the suit is against a coemployee doctor, the dual capacity or dual persona doctrine is completely untenable. “[T]he company doctor does not have two capacities. He has only one: company doctor. That is the entire extent of his relation to his coemployees. All he does, all day long, is perform in this single capacity in relation to his coemployees.” 2A Larson § 72.61(b) at 14-203 to -204 (emphasis in original). In a state whose statute immunizes coemployees from tort liability, a doctor who is employed by the same employer as the plaintiff employee is usually held to be sheltered by the exclusive-remedy provision of the workers’ compensation statute. See, e.g., Budzichowski v. Bell Telephone Co., 503 Pa. 160, 469 A.2d 111 (1983) (employer-employee relationship exists when doctor works at plant’s medical dispensary on a full-time basis, is paid a fixed salary, and receives same fringe benefits as supervisory employees; that such doctor is not prohibited from engaging in outside practice is not by itself determinative of independent contractor status; that the particular occupation may involve such technical skill that the employer’s general management is wholly incapable of supervising the details of performance is not by itself determinative of independent contractor status, especially where doctor is supervised by a medical director who is a doctor; rejecting expressly at n. 5 the applicability of dual capacity doctrine to coemployees even when such doctrine may be applicable to an employer).¹⁰ But see Ross v. Schubert, 180 Ind. , 388 N.E.2d 623 (1979) (company doctors are independent contractors, not coemployees, for the purpose of tort liability, because of their professional status and responsibilities).¹¹ Two states expressly apply the dual capacity doctrine to coem-ployee doctors.¹² See generally annot., 28 A.L.R.3d 1066 (1969), especially §§ 5, 10. Cf. annot., 23 A.L.R.4th 1151 (1983) (dual capacity doctrine as basis for recovery from employer).

The injured employee in this case argues that applying coemployee immunity to coemployee doctors would be against public policy because it would not discourage medical malpractice by coemployee doctors, to the detriment of employees’ health. On the other hand, the employer in this case in its amicus curiae brief argues that excepting employee doctors from coemployee immunity would be against public policy because it would discourage employers from maintaining on-site dispensaries, to the detriment of employees’ health. The legislature, not this Court, is the appropriate tribunal for deciding this fairly debatable issue. See syl. pt. 3, Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985). By not excepting doctors or other professional employees from W.Va.Code, 23-2-6a [1949] the legislature has decided the issue in favor of immunity.¹³

In summary, we hold that a full-time, salaried doctor employed by a subscriber to the Workers’ Compensation Fund or by a self-insured employer is immune from tort liability to a coemployee under W.Va.Code, 23-2-6a [1949] and that the so-called “dual capacity” or “dual persona ” doctrine does not except such a doctor from such immunity.

II. Liability Insurance

The second certified question is whether the immunity from tort liability provided by W.Va.Code, 23-2-6a [1949] is inapplicable to the extent that the doctor employed by a subscriber to the Workers’ Compensation Fund or by a self-insured employer is covered by liability insurance. We think not.

This Court concludes that the rationale employed in Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), specifically, that the legislature had waived constitutional governmental immunity to the extent that liability insurance coverage is available, is clearly inapposite to the statutory immunity of coemployees under the Workers’ Compensation Act.

As discussed in Pittsburgh Elevator, the purpose of governmental immunity is to protect the financial structure of the State. When, therefore, recovery is not sought from state funds but from the private funds of an insurer as the real party in interest, the rule of governmental immunity is not applicable because the reason for the rule is not implicated. In addition, to deny recovery in such a case would deny the constitutional rights to access to the courts and to redress of grievances.¹⁴

On the other hand, the purpose of coem-ployee (and employer) immunity under the Workers’ Compensation Act is to replace the common-law tort claims and defenses between or among employers and employees with the no-fault, exclusive remedy of workers’ compensation. Liability insurance coverage does not remove this reason for the rule, and allowing suits would emasculate the workers compensation system greatly. For example, by the same theory, any employee covered by automobile liability insurance, which coverage is usually required by W.Va.Code, 17D-2A-3 [1982], would be subject to suit for an injury sustained by a coemployee in a motor vehicle accident in the course of and resulting from employment.¹⁵ Also, unlike governmental immunity (in the context of liability insurance coverage), coemployee (and employer) immunity under the Workers’ Compensation Act does not result in a total denial of the right to apply for redress of grievances. Instead, the alternative workers’ compensation remedies are available in lieu of the common-law remedies.¹⁶

In summary, we hold that the immunity from tort liability provided by W. Va.Code, 23-2-6a [1949] is not waived to the extent that liability insurance coverage , is available.

Having answered the certified questions, this case is dismissed from the docket of this Court.

Certified questions answered; case dismissed.

1 . Mrs. Jerri Deller, wife of Frederick H. Deller, joined in the action to recover for loss of consortium.

2 . The name of the employer is now Weirton Steel Corporation.

3 .~W.Va.Code, 23-2-6a [1949] provides: "The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is" acting in furtherance of the employer’s business and does not inflict an. injury with deliberate intention.”

W.Va.Code, 23-2-6 [1974] provides:

Any employer subject to this chapter who shall subscribe and pay into the workmen’s [workers'] compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter. The continuation in the service of such employer shall be deemed a waiver by the employee and by the parents of any minor employee of the right of action as aforesaid, which the employee or his or her parents would otherwise have: Provided, that in case of employers not required by this chapter to subscribe and pay premiums into the workmen’s [workers’] compensation fund, the injured employee has remained in such employer’s service with notice that his employer has elected to pay into the workmen’s [workers'] compensation fund the premiums provided by this chapter, or has elected to make direct payments as aforesaid.

4 . The questions were certified pursuant to W.Va.Code, 58-5-2 [1967] and W.Va.R.App.P. 13.

5 . By "self-insured employer” we refer to an employer who, pursuant to W.Va.Code, 23-2-9 [1984], elects to make direct payments of compensation in lieu of subscribing to the Workers’ Compensation Fund. Such an employer is also immunized from tort liability by W.Va.Code, 23-2-6 [1974] when not in default in payments and otherwise complies with the Workers’ Compensation Act.

6 . W. Va.Code, 23-2-la [1975] provides in pertinent part:

Employees subject to this chapter are all persons in the service of employers and employed by them for the purpose of carrying on the industry, business, service or work in which they are engaged, including, but not limited to ... every executive officer of an association or of a corporation elected or appointed in accordance with the charter and bylaws of the association or corporation, every person in the service of the State or of any political subdivision or agency thereof, under any contract of hire, express or implied, and every official or officer thereof, whether elected or appointed, while performing his official duties, ...

7 . Hinkelman v. Wheeling Steel Corp., 114 W.Va. 269, 171 S.E. 538 (1933), involving an employee doctor, was decided more than 15 years before W.Va.Code, 23-2-6a [1949] was enacted. Syl. pt. 4, Tawney v. Kirkhart, 130 W.Va. 550, 44 S.E.2d 634 (1947), not involving an employee doctor, expressly overruled Hinkelman on the basis that W.Va.Code, 23-2-6, as amended, immunizes only the employer and not coemploy-ees. "At the next succeeding session of the legislature, Section 6a was enacted. It is reasonable to assume that the purpose of the legislature in enacting Section 6a was to change the rule of the Tawney case so as to extend the immunity of the employer to additional persons[,] ... including fellow employees." Bennett v. Buckner, 150 W.Va. 648, 654, 149 S.E.2d 201, 204-05 (1966). The majority opinion in Jones v. Laird Foundation, Inc., 156 W.Va. 479, 491, 195 S.E.2d 821, 828-29 (1973), involving a non-employee doctor’s aggravation of a workers’ compensable injury, notes that the enactment of W.Va.Code, 23-2-6a [1949] moots the Hinkelman/Tawney conflict over coemployee immunity. The result in Hinkelman (immunity) is codified.

8 . See, e.g., Wis.Stat.Ann. § 102.29(3) (West Supp.1984-85): "Nothing in this chapter shall prevent an empIoye[e] from taking the compensation he or she may be entitled to under it and also maintaining a civil action against any physician, chiropractor or podiatrist for malprac-tice_”

9 . After this definition is this excellent analysis by Professor Larson in the same section of his treatise:

In this formulation, an attempt has been made to correct the looseness and overextension attending the so-called ‘dual capacity’ doctrine. In a sense, a single legal person may be said to have many ‘capacities,’ since that term has no fixed legal meaning. As a result, a few courts have stretched the doctrine so far as to destroy employer immunity whenever there was, not a separate legal person, but merely a separate relationship or theory of liability. When one considers how many such added relations an employer might have in the course of a day’s work — as landowner, land occupier, products manufacturer, installer, modifier, vendor, bailor, repairman, vehicle owner, shipowner, doctor, hospital, health services provider, self-insurer, safety inspector — it is plain enough that this trend could go a long way toward demolishing the exclusive remedy principle- [Accord, State v. Purdy, 601 P.2d 258, 260 (Alaska 1979) ].

Since the term 'dual capacity’ has proved to be subject to such misapplication and abuse, the only effective remedy is to jettison it altogether, and substitute the term ‘dual persona doctrine.’ ... The question is not one of activity, or relationship — it is one of identity. The Tennessee Supreme Court, brushing aside all the fictitious sophistry of 'dual capacity,’ nailed down this point with breathtaking simplicity:

'The employer is the employer; not some person other than the employer. It is [that] simple.... [McAlister v. Methodist Hospital, 550 S.W.2d 240, 246 (Tenn.1977).]

The only way a court can break through this monolithic truism is to resort to a legal fiction. And, as has been stressed at several other points in [this treatise], legal fictions have no place in thé interpretation of detailed modern statutes, such as compensation acts.

10 . See also Young v. St. Elizabeth Hospital, 131 Ill.App.3d 193, 86 Ill.Dec. 389, 475 N.E.2d 603 (1985) (expressly rejecting dual capacity doctrine); Thomas v. Kenton, 425 So.2d 396 (La.Ct. App. 3 Cir.1982); Jones v. Bouza, 381 Mich. 299, 160 N.W.2d 881 (1968) (rejecting argument that medical malpractice claims should be treated differently than other common-law tort claims barred by coemployee immunity statute and rejecting argument that allowing suit against independent contractor physician but denying suit against coemployee physician results in denial of equal protection); Boyle v. Breme, 187 N.J. Super. 129, 453 A.2d 1335 (1982), aff'd for reasons stated below, 93 N.J. 569, 461 A.2d 1164 (1983) (refusing to apply dual capacity doctrine; deferring to legislature to create this or any other exception to coemployee immunity); Garcia v. Iserson, 33 N.Y.2d 421, 353 N.Y.S.2d 955, 309 N.E.2d 420 (1974) (coemployee physician worked at employer’s infirmary four hours per day, three days per week, for a $100.00 weekly salary; his professional services were available only to employees and not to the general public; plaintiff employee received these services in consequence of his employment); Proctor v. Ford Motor Co., 36 Ohio St. 2d 3, 302 N.E.2d 580 (1973) (being “professional” persons does not by itself cause plant physicians to be independent contractors; provision of medical services to employees at on-site dispensary furthers the business interests of employer automobile manufacturer); Ross v. Erickson Construction Co., 89 Wash. 634, 155 P. 153 (1916) (aggravation by coemployee doctor of workers’ compensable injury is not an independent injury but is proximately attributable to the original employment-related injury and is within the exclusive remedy provision of workers’ compensation).

11 .2A Larson § 72.61(b) at 14-204 to -206 soundly criticizes the Indiana approach:

Indiana has pierced the immunity of coem-ployee doctors and nurses by a sort of throwback to an early common-law notion that, because of their professional responsibility, doctors must necessarily be independent contractors, bolstered by the policy argument that immunization would encourage malpractice.

The short answer to the Indiana approach is that company doctors, and nurses, like salaried lawyers, interns, and other professional persons, are now routinely held to be employees for purposes of compensation benefits, and it is unthinkable that a legislature should intend that a given person should be an employee under the act for one purpose and an independent contractors [sz'c] for another. It is no answer to this to say, as the Indiana court did, that the rule of liberal construction appropriate to determining status for benefits is not necessarily applicable in determining status for third party liability. For one thing, one does not need to invoke liberal construction to find employee status for a full-time salaried doctor or nurse; all that is needed is to apply the routine standards of employment relation. And in any case, once a particular category of persons, like company doctors, has been placed in the employee classification, that classifications [sz'c] must govern for all purposes. This is not only simple logic and straightforward statutory construction, but also is a recognition of the policy justification for coemployee immunity in the first place. As brought out in the discussion of this policy earlier, there can be said to be a quid pro quo among employees, in that each gives up his common law rights against the others in return for immunity to tort suits. But, if the company doctor is not immune as a coemployee, this rationale breaks down: he loses his right to sue coemployees, while remaining liable to suit by coemployees himself, (footnotes omitted)

12 . Hoffman v. Rogers, 22 Cal.App.3d 655, 99 Cal.Rptr. 455 (1972) (expressly applying dual capacity doctrine; otherwise, quackery and disregard of professional obligations would be encouraged); Wright v. District Court, 661 P.2d 1167 (Colo.1983) (expressly applying dual capacity doctrine; the very practice of medicine, with its special duties and responsibilities, charges a coemployee doctor with all of the obligations which normally arise in the doctor-patient relationship).

13 . Wright v. District Court, 661 P.2d 1167 (Colo. 1983), supra, n. 12, in applying the dual capacity doctrine, discusses (at 1170-71) five purported distinctions between typical coemployees and coemployee doctors justifying tort liability exposure for the latter despite coemployee immunity provided by statute. We believe each of these is an unsound basis for our carving out an exception from coemployee immunity for coemploy-ee doctors. First, that the injuries resulting from the coemployee doctor’s medical malpractice occur away from the production area and are, therefore, easier to identify does not justify special treatment of coemployee doctors. The same could be said of injuries caused by an office worker at the plant. Second, medical malpractice at the company dispensary is no less an inherent risk in the production process than a motor vehicle accident involving employees on the company parking lot. Third, that coemployee doctors have higher income and liability insurance coverage than the "average coemployee" does not justify disparate treatment because the coemployee immunity statute does not immunize only “average employees.” Fourth, that the doctor is removed from the production area and is, therefore, very unlikely to be injured does not constitute a valid distinction because the same reasoning would apply also to an office worker at the plant. Fifth, the contention that applying coemployee immunity to coemployee doctors results in the employer’s not having an economic incentive to deter future medical malpractice is not well taken because this contention ignores the increased workers’ compensation premium rate which would result from the employer’s subsequent experiences with compensable claims. See W. Va. Code, 23-2-4 [1976].

14 . W.Va. Const., art. Ill, §§ 17, 16.

15 . See, e.g., Eisnaugle v. Booth, 159 W. Va. 779, 226 S.E.2d 259 (1976), overruled on other grounds, syl. pt. 1, Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978) (employee driving his own automobile on employer's parking lot on way to work struck a coemployee who was walking to work; coem-ployee immunity held applicable; no intimation of waiver of such immunity to the extént of automobile liability insurance coverage).

16 . We also note that the doctor’s medical malpractice insurance policy and the employer’s liability insurance policy both expressly exclude coverage when workers’ compensation is applicable to compensate the person injured.