2
Certification of Question of Law United States District Court
for the District of Colorado Case No. 22-cv-02557- NRN .
Attorneys for Plaintiff: Western Slope Law Nelson A. Waneka,
Glenwood Springs, Colorado Bendinelli Law Firm, P.C. George
Norelli Westminster, Colorado.
Attorneys for Defendant: Montgomery Amatuzio Chase Bell Jones
LLP Max K. Jones, Jr. Maddin M. Nelson,
3
Hayleigh
P. Lidbury Alex J. Gunning, Denver, Colorado.
Attorneys for Amicus Curiae American Property Casualty
Insurance Association: Lewis Roca Rothgerber Christie LLP
Kendra N. Beckwith Brian J. Spano Denver, Colorado.
Attorneys for Amicus Curiae Colorado Defense Lawyers
Association: Sutton Booker, P.C. Erica O. Payne, Denver,
Colorado Waltz|Reeves Christopher R. Reeves Denver, Colorado
Zupkus & Angell, P.C. Amy L. Twohey Denver, Colorado.
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association: Jordan Law Michael J. Rosenberg, Greenwood
Village, Colorado.
Attorneys for Amicus Curiae Colorado Workers'
Compensation Education Association: The Elliott Law Offices,
PC Alonit Katzman Arvada, Colorado.
JUSTICE BERKENKOTTER delivered the Opinion of the Court, in
which CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT,
JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE
SAMOUR joined.
4
OPINION
BERKENKOTTER, JUSTICE.
¶1
In this case, we accepted jurisdiction under C.A.R. 21.1 to
answer the following question of law certified to us by the
United States District Court for the District of Colorado:
Whether an employee injured in the course of his employment
by the acts of an underinsured third-party tortfeasor, and
who receives worker's compensation benefits as a result,
is barred, under Colorado's Workers' Compensation
Act, Colo. Rev. Stat § 8-41-104, from bringing suit
against his employer's UM/UIM insurer?
¶2
We conclude that the answer to this question is no. Under
Colorado law, an employee who is injured in the course of
their employment by a third-party tortfeasor and who receives
workers' compensation benefits as a result of that injury
can also sue to recover benefits from their employer's
separate uninsured/underinsured motorist ("UM/UIM")
carrier. We reach this conclusion because the plain language
of the pertinent section of the Workers' Compensation Act
of Colorado ("WCA"), §§ 8-40-101 to
8-47-209, C.R.S. (2024), immunizes only employers and their
workers' compensation insurance carriers from liability.
¶3
We further determine that when an employee is injured by the
negligence of a third party, rather than by an employer or
co-employee, a suit to recover UM/UIM benefits does not
constitute a suit against the employer or co-employee and,
therefore, is not barred by the exclusivity clause of the
WCA. Accordingly, we answer the certified question in the
negative.
5
I.
Facts and Procedural History[1]
¶4
Plaintiff Kevin Klabon worked as a technician for CMI Legacy,
LLC ("CMI"), a company that installs and services
heating, ventilation, and air conditioning units in Denver,
Colorado. While working for and driving a van owned by CMI,
Klabon was struck by a vehicle driven by Rodrigo
Canchola-Rodriguez when Canchola-Rodriguez failed to stop at
a red traffic light. Klabon alleges that he suffered serious
injuries in the accident, causing him to incur over $500,000
in medical expenses. Klabon sought and recovered workers'
compensation benefits from CMI through its WCA carrier,
Pinnacol Assurance. He subsequently settled a claim with
Canchola-Rodriguez's auto liability insurer, Progressive
Preferred Insurance Company, for $25,000, the limit for
bodily injury claims under Canchola-Rodriguez's policy.
Klabon then filed a claim under CMI's commercial auto
insurance policy, issued by Travelers Property Casualty
Company of America ("Travelers"). In addition to
liability coverage, the Travelers policy provided up to $1
million in UM/UIM coverage.
¶5
Travelers ultimately valued Klabon's UIM claim at
$78,766, based in part on its medical expert's finding
that some of Klabon's injuries predated the accident.
6
Travelers did not pay out the full value it assigned to the
claim, instead issuing $45,766.68 in total payments for UIM
benefits to Klabon.
¶6
Klabon sued Travelers in state court, alleging that Travelers
unreasonably denied and delayed payment of UIM benefits, and
that such denial was done in bad faith and in breach of its
contract. See § 10-3-1115, C.R.S. (2024)
(forbidding an insurer from unreasonably delaying or denying
payment of a claim for benefits). He asserted that, by virtue
of his employment with CMI, he was a "covered
driver" under CMI's policy and was thus entitled to
additional UIM benefits. Travelers removed the case to
federal court.
¶7
Travelers then moved for summary judgment, asserting for the
first time that Klabon's receipt of workers'
compensation benefits barred his suit to recover UIM
benefits. Citing the WCA's "exclusivity and immunity
provisions," §§ 8-41-102, -104, C.R.S. (2024),
Travelers argued that Klabon's acceptance of workers'
compensation benefits rendered the WCA the exclusive remedy
for his injuries, and consequently, that Klabon had
surrendered his right to bring a claim against his
employer's UIM carrier. Klabon responded that since he
was injured by the negligence of an underinsured third party,
rather than by CMI or a co-employee, the WCA's
exclusivity and immunity provisions posed no impediment to
his suit against Travelers for UIM benefits.
7
¶8
United States Magistrate Judge N. Reid Neureiter heard
arguments on the motion and raised sua sponte whether the
issue would be best addressed by this court as a certified
question of law. Travelers agreed that certification was
appropriate. Klabon disagreed because, in his view, our
decision in Aetna Casualty & Surety Co. v.
McMichael, 906 P.2d 92 (Colo. 1995), resolved the issue.
There, this court held that an employee's suit to recover
UM/UIM damages sustained due to the negligence of a third
party was not barred by a workers' compensation exclusion
in the underlying policy. Id. at 100. This was
because the benefits sought were not workers'
compensation benefits. Rather, they were UM/UIM benefits that
were substituted for benefits McMichael would have received
from the motorist who caused his injuries had the motorist
been sufficiently insured. Id. Klabon argued that
his lawsuit, like McMichael's, represented a claim
"based on the liability incurred by the driver who
caused the accident," rather than a claim against his
employer. Id.
¶9
After hearing the parties' arguments, the court observed
that federal district judges in Colorado have "recently
been struggling" with the question of whether an
employee injured in the course of their employment by an
underinsured third-party tortfeasor and who receives
workers' compensation benefits can nonetheless
8
recover benefits from their employer's UM/UIM
carrier.[2] Faced with conflicting precedent
interpreting and applying the language of the WCA's
immunity and exclusivity provisions, and recognizing the
significant public policy implications for Colorado
workers' compensation beneficiaries and their employers,
the United States Magistrate Judge certified the question of
whether an employee injured in the course of their employment
by the acts of a third-party tortfeasor, and who receives
benefits under the WCA, is barred from bringing suit against
their employer's UM/UIM carrier.
¶10
We accepted review of the certified question. After
considering the Order Certifying Question to Colorado Supreme
Court, the parties' briefing before the District Court
and this court, and the oral arguments of the parties in this
court, we now proceed to decide that question.[3]
9
II.
Analysis
¶11
We begin by setting forth the applicable standard of review
and our rules of statutory construction. We turn next to
consider the language of both the WCA and Colorado's
UM/UIM statute because they are the statutory schemes guiding
our decision in this case. After that, we address the
certified question head-on, determining, as an initial
matter, that section 8-41-102, C.R.S. (2024), rather than
section 8-41-104 C.R.S., (2024), governs our decision in this
case and holding that an employee injured in the course of
their employment by the acts of an uninsured or underinsured
third-party tortfeasor is not barred from suing their
employer's UM/UIM carrier for benefits, even when they
have received workers' compensation benefits as a result
of that injury. This, we explain, is because the plain
language of section 8-41-102 immunizes Pinnacol, CMI's
workers' compensation insurance carrier, not Travelers,
CMI's UM/UIM carrier. We further conclude that when an
employee is injured by the negligence of a third party,
rather than by an employer or a co-employee, a suit to
recover UM/UIM benefits does not constitute a suit against
the employer and, therefore, is not barred by the WCA as an
employee's exclusive remedy.
A.
Standard of Review and Canons of Statutory Construction
¶12
This court has discretion under C.A.R. 21.1(a) to resolve
questions of law certified by a federal court. We exercise
that discretion when a question "may be
10
determinative of the cause then pending in the certifying
court and as to which it appears to the certifying court that
there is no controlling precedent in the decisions of the
supreme court." Skillett v. Allstate Fire & Cas.
Ins. Co., 2022 CO 12, ¶ 8, 505 P.3d 664, 666
(quoting C.A.R. 21.1(a)). We review such questions de novo.
Id. Likewise, we review de novo the issues of
statutory interpretation. Godinez v. Williams, 2024
CO 14, ¶ 19, 544 P.3d 1233, 1237.
¶13
When interpreting statutes, our aim is to effectuate the
intent of the General Assembly by turning first to the
statutory text and giving words their plain and ordinary
meanings. Id. at ¶ 20, 544 P.3d at 1237.
Additionally, we read a statute "in context and in its
entirety; giv[ing] 'consistent, harmonious, and sensible
effect to all of its parts[] and avoid[ing] constructions
that would render any words or phrases superfluous or lead to
illogical or absurd results.'" Skillett,
¶ 9, 505 P.3d at 666 (quoting Pineda-Liberato v.
People, 2017 CO 95, ¶ 22, 403 P.3d 160, 164). If
the statute's language is clear, we look no further.
Id. Next, we examine the two statutes that guide our
consideration of the question certified: the WCA and the
UM/UIM statute.
B. The
WCA
¶14
The General Assembly enacted the WCA to protect employees who
sustain work-related injuries. Am. Fam. Mut. Ins. Co. v.
Ashour, 2017 COA 67, ¶ 66, 410 P.3d 753, 764.
Specifically, the WCA's purpose is to "assure the
quick and
11
efficient delivery of disability and medical benefits to
injured workers . . . without the necessity of any
litigation." § 8-40-102(1), C.R.S. (2024). To that
end, the WCA sets forth statutorily mandated coverage that
certain employers must provide to employees injured on the
job, including coverage of "medical expenses, lost
wages, disability benefits, compensation for disfigurement,
and death and burial benefits." Delta Air Lines,
Inc. v. Scholle, 2021 CO 20, ¶ 14, 484 P.3d 695,
699; see also § 8-42-101 to -125, C.R.S.
(2024).
¶15
The WCA was designed to be the "exclusive remed[y] for
employees suffering work-related injuries."
Horodyskyj v. Karanian, 32 P.3d 470, 474 (Colo.
2001). Its exclusive remedy provisions, sections 8-41-102 and
8-41-104, bar an employee from bringing a civil action in
tort against their employer for injuries that the employee
sustained while performing services arising during the course
of their employment. Ryser v. Shelter Mut. Ins. Co.,
2021 CO 11, ¶ 21, 480 P.3d 1286, 1290. Thus, in exchange
for an employer securing insurance to cover its
employees' work-related injuries, Ashour, ¶
18, 410 P.3d at 757, those employees forego common law
remedies otherwise available to them. Kandt v.
Evans, 645 P.2d 1300, 1302 (Colo. 1982); see
also § 8-40-102(1) (declaring that "the
workers' compensation system in Colorado is based on a
mutual renunciation of common law rights and defenses by
employers and employees alike"). And if an employee is
injured in the course of their employment by a co-employee,
under the "co-
12
employee immunity rule," the co-employee is also
immunized from common law liability. Ryser, ¶
23, 480 P.3d at 1290.
¶16
As noted, two provisions of the WCA serve as the Act's
exclusive remedy provisions: sections 8-41-102 and 8-41-104.
Section 8-41-102 provides:
An employer who has complied with the provisions of articles
40 to 47 of this title, including the provisions relating to
insurance, shall not be subject to the provisions of section
8-41-101[, C.R.S. (2024),] [concerning the unavailability of
certain defenses]; nor shall such employer or the
insurance carrier, if any, insuring the employer's
liability under said articles be subject to any other
liability for the death of or personal injury to any
employee, except as provided in said articles; and
all causes of action, actions at law, suits in equity,
proceedings, and statutory and common law rights and remedies
for and on account of such death of or personal injury to any
such employee and accruing to any person are abolished
except as provided in said articles.
(Emphases added.) Section 8-41-104 provides:
An election under the provisions of section 8-40-302(5)[,
C.R.S. (2024),] and in compliance with the provisions of
articles 40 to 47 of this title, including the provisions for
insurance, shall be construed to be a surrender by the
employer, such employer's insurance carrier, and the
employee of 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 or death of such employee other than
as provided in said articles, and shall be an acceptance of
all the provisions of said articles, and shall bind the
employee personally, and, for compensation for such
employee's death, the employee's personal
representatives, surviving spouse, and next of kin, as well
as the employer, such employer's insurance carrier, and
those conducting their business during bankruptcy or
insolvency.
13
¶17
Section 8-41-102 thus immunizes a WCA-compliant employer-and
its workers' compensation insurance carrier-from suit by
an employee injured in the course of their employment. §
8-41-102 (an employer compliant with the provisions of the
WCA "or the insurance carrier . . .
insuring the employer's liability under [the
WCA]" shall not "be subject to any other liability
for the death of or personal injury to any employee"
(emphasis added)). It also extinguishes all common law causes
of action arising from an employee's injury, rendering
the WCA an employee's exclusive remedy for on-the-job
injuries. Id. ("[A]ll causes of action . . . on
account of such death of or personal injury to any such
employee . . . are abolished . . . .").
¶18
Section 8-41-104 contains similar limiting language. Under
that section, "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 on-the-job injuries.
Ryser, ¶ 26, 480 P.3d at 1291 (omission in
original) (quoting § 8-41-104).
¶19
While traditionally cited together as the WCA's
"exclusivity provisions," see, e.g.,
Ashour, ¶ 17, 410 P.3d at 757, sections
8-41-102 and -104 apply to different categories of employers.
Section 8-41-104 is applicable only to employers who are
statutorily excluded pursuant to section 8-40-302(2) to (4)
of the WCA from
14
providing workers' compensation to their employees, but
who nonetheless elect to do so under the provisions of
section 8-40-302(5).[4]
¶20
Section 8-41-102, conversely, applies to all employers who
are statutorily required to provide WCA benefits in the first
instance. See Ashour, ¶ 13, 410 P.3d at 756
("Employers subject to the [WCA] . . . are required to
secure insurance to cover their employees' claims for
work-related injury." (citing § 8-44-101(1), C.R.S.
(2024) ("Any employer subject to the [WCA] shall secure
compensation for all employees . . . ."))).
¶21
While sections 8-41-102 and -104 apply to different
categories of employers, taken together they constitute the
WCA's "exclusivity provisions," limiting
injured employees' common law remedies and immunizing
employers and co-employees from tort claims. Ashour,
¶¶ 17-18, 410 P.3d at 757. These provisions do not
bar injured employees from asserting all tort
claims. Notably, the WCA expressly permits an employee to
receive workers' compensation benefits and
pursue a remedy against a third-party tortfeasor. That is,
while an employee cannot pursue a remedy for an injury
against an employer or a co-employee, an employee can pursue
a remedy when the employee is injured by the negligence of
15
a third party. See § 8-41-203(1)(a),
C.R.S. (2024) (providing that employees who are "injured
or killed by the negligence or wrong of another not in the
same employ" may obtain workers' compensation
benefits "and may also pursue a remedy against the other
person to recover any damages in excess of the compensation
available under [the WCA]").
C. The
UM/UIM Statute
¶22
The General Assembly enacted the UM/UIM statute for a very
different purpose. It serves to "protect the public from
the devastating financial loss that a traffic accident victim
can incur" and to "provide a mechanism through
which an insured could purchase insurance coverage against
loss caused by the negligent conduct of a financially
irresponsible motorist." McMichael, 906 P.2d at
98; see also DeHerrera v. Sentry Ins. Co., 30 P.3d
167, 174 (Colo. 2001) (observing that "the important
policy behind UM/UIM insurance [is] to protect persons from
the often-devastating consequences of motor vehicle
accidents"). The statute provides, in pertinent part:
Except as described in subsection (1)(a)(II) of this section,
an automobile liability or motor vehicle liability policy
insuring against loss resulting from liability imposed by law
for bodily injury . . . suffered by any person arising out of
the ownership, maintenance, or use of a motor vehicle, which
policy is delivered or issued for delivery in this state with
respect to any motor vehicle licensed for highway use in this
state, must provide coverage or supplemental coverage . . .
for the protection of persons insured under the policy who
are legally entitled to recover damages from owners or
operators of uninsured motor vehicles because of bodily
16
injury, sickness, or disease, including death, resulting from
a motor vehicle accident.
§ 10-4-609(1)(a)(I), C.R.S. (2024).
¶23
To effectuate the General Assembly's goal, the statute
requires auto insurance liability policies to also include
optional UM/UIM coverage. This coverage, as the name
suggests, provides benefits when a tortfeasor lacks liability
insurance or is underinsured. See DeHerrera, 30 P.3d
at 173. Specifically, a UM/UIM policy "functions as a
bridge that spans the gap between a tortfeasor's
insurance liability limits and the amount of damages
sustained by an insured, up to the amount of the UM/UIM
coverage purchased." Essentia Ins. Co. v.
Hughes, 2024 CO 17, ¶ 26, 545 P.3d 494, 500.
¶24
To be entitled to coverage, an insured must establish that
they are "legally entitled to recover damages,"
that is, "that the fault of the uninsured [or
underinsured] motorist gave rise to damages and the extent of
those damages." Borjas v. State Farm Mut. Auto. Ins.
Co., 33 P.3d 1265, 1269 (Colo.App. 2001). Additionally,
an employee is not "legally entitled to recover"
UM/UIM benefits from an employer or a co-employee under the
WCA. Ryser, ¶ 36, 480 P.3d at 1293-94 (holding
that the WCA's exclusivity and co-employee immunity
principles bar an employee from bringing a UM/UIM benefits
claim against an employer or co-employee).
17
¶25
With the WCA and the UM/UIM statute in mind, we turn now to
their application in this case.
D.
An Employer's UM/UIM Carrier Is Not an Immunized Insurer
Under Section 8-41-102
¶26
Section 8-41-102 governs our initial consideration of this
case because it covers all employers statutorily required to
provide workers' compensation insurance under the WCA.
See § 8-44-101(1) (requiring subject employers
to secure workers' compensation coverage for their
employees). Here, there is no dispute that CMI falls within
the scope of section 8-41-102. Thus, we look to that section,
rather than to section 8-41-104, to determine whether its
immunity and exclusivity language bars Klabon's suit to
recover UM/UIM benefits.
¶27
Recall that, under the immunizing language in section
8-41-102, neither the "employer or the insurance
carrier, if any, insuring the employer's liability under
said articles" shall "be subject to any other
liability for the death of or personal injury to any
employee." The phrase "under said articles" as
used in this section refers to "articles 40 to 47"
of the WCA. § 8-41-102 (governing "employer[s] who
ha[ve] complied with the provisions of articles 40 to 47 of
this title"). Thus, in this case, the carrier
"insuring the employer's liability" under the
WCA is Pinnacol, CMI's workers' compensation
insurance carrier-not Travelers, CMI's separate auto
liability insurance carrier. See Ashour,
¶¶ 14-15, 410 P.3d at 756-57 (quoting
18
sections 8-41-102 and -104 and concluding that the employer
"and its workers' compensation insurance carrier are
immune from suit").
¶28
Further, reading section 8-41-102 to immunize an insurance
carrier that does not insure the employer's workers'
compensation liability would conflict with the plain language
of the statute and undermine the basis of immunity provided
by the WCA, which is built upon an exchange between an
employee and employer. Id. at ¶ 18, 410 P.3d at
757 ("[T]he workers' compensation system is an
agreement by employers to provide benefits to employees,
regardless of fault, and in exchange for assuming that
burden, the employer is immunized from tort claims for
injuries to its employees."); see also Froid v.
Knowles, 36 P.2d 156, 158 (Colo. 1934) ("An
outsider does not share the burdens of the [WCA] imposed upon
the employer, and he is entitled to none of its
benefits." (quoting Hotel Equip. Co. v.
Liddell, 124 S.E. 92, 94-95 (Ga.Ct.App. 1924)));
Frohlick Crane Serv., Inc. v. Mack, 510 P.2d 891,
893 (Colo. 1973) ("The employer is immunized from claims
for tortious injuries only because he assumes the burden of
compensating a workman for all job-related injuries.").
¶29
Unlike Pinnacol, Travelers does not bear the burden of
providing workers' compensation benefits or of ensuring
its compliance with any of the WCA's insurance
requirements. See § 8-44-101(1) (describing,
for employers subject to the WCA, what constitutes
"compliance with the [WCA's] insurance
requirements");
19
see also § 8-44-102(1), C.R.S. (2024)
("Every contract for the insurance of compensation and
benefits . . . is subject to articles 40 to 47 of this title,
and all provisions in the contract for insurance inconsistent
with those articles are void."). Consequently, section
8-41-102 does not immunize Travelers from liability.
E. A
Suit to Recover UM/UIM Benefits for a Third Party's
Negligence Does Not Constitute a Suit Against an Employer or
a Co-Employee
¶30
Our inquiry does not, however, stop there. Although we have
determined that Travelers is not shielded by section
8-41-102's immunity clause, we are still left with the
question of whether Klabon's suit to recover UM/UIM
benefits is nonetheless precluded by the section's
exclusivity clause. See § 8-41-102 ("[A]ll
causes of action, actions at law, suits in equity,
proceedings, and statutory and common law rights and remedies
for and on account of such death of or personal injury to any
such employee and accruing to any person are abolished except
as provided in said articles."); Kandt, 645
P.2d at 1302 (observing that, under section 8-41-102,
"[r]ecovery under the [WCA] is meant to be exclusive and
to preclude employee tort actions against an employer").
¶31
Travelers urges us to answer this question "yes."
It asserts that allowing an employee to recover benefits from
an employer's UM/UIM carrier would ignore the WCA's
purpose as an employee's exclusive remedy and allow
duplicate claims for recovery. We are unpersuaded.
20
¶32
Recall that when an employee is injured in the course of
their employment by a third-party tortfeasor, the WCA's
exclusivity provisions do not foreclose the employee's
recovery from that third party. Rather, the WCA expressly
permits an injured employee to recover both workers'
compensation benefits and to sue the third-party
tortfeasor for damages. § 8-41-203(1)(a). When the
third-party tortfeasor is uninsured or underinsured, a suit
to recover UM/UIM benefits-even from an employer's UM/UIM
carrier-is not a suit against the employer or a co-employee,
and, accordingly, does not implicate, let alone violate, the
WCA's exclusivity rule.
¶33
We said as much in McMichael. 906 P.2d at 100. In
that case, McMichael was working on a highway near his parked
company-owned truck when he was struck and seriously injured
by another driver. Id. at 94. The driver who hit
McMichael had inadequate auto insurance to compensate him for
his injuries, so McMichael filed an underinsured motorist
claim with Aetna, his employer's auto insurance carrier.
Id. Aetna argued that McMichael's UM/UIM claim
was precluded by an exclusion in the policy for "[a]ny
obligation for which the 'insured' or the
'insured's' insurer may be held liable under any
workers' compensation . . . law." Id. at
99-100. We rejected Aetna's claim, explaining that the
WCA "does not bar McMichael from bringing a tort action
against the driver who caused the accident,"
id. at 100 n.7 (citing § 8-41-203), and that
the UM/UIM benefits
21
McMichael sought through his suit against Aetna
"substitute for benefits that [he] would have received
from the motorist who caused his injuries," id.
at 100. Indeed, we emphasized that the UM/UIM benefits
"do not constitute workers' compensation benefits
and do not result because of a suit brought by McMichael
against" his employer. Id.
¶34
The principle we set forth in McMichael, which we
reiterate today, is that an employee's suit to recover
UM/UIM benefits predicated on the liability of an uninsured
or underinsured third party is not an action prohibited by
the exclusivity clause of section 8-41-102.
¶35
We drew this distinction in Ryser as well. There, an
employee injured by his co-employee's negligence
recovered workers' compensation benefits and also sought
to recover UM/UIM benefits from his co-employee's auto
insurer. Ryser, ¶¶ 4-7, 480 P.3d at
1287-88. We held that the WCA's co-employee immunity rule
barred the employee's suit to recover UM/UIM benefits,
explaining that the WCA's immunity for co-employees
extends to a co-employee's insurance carrier.
Id. at ¶ 29, 480 P.3d at 1291. In so holding,
we explicitly distinguished McMichael on the basis
that it dealt with an employee injured by a third party:
"Because the plaintiff in McMichael was injured
by the negligence of an unrelated tortfeasor (i.e., a
tortfeasor who was not a co-employee), we had no occasion to
consider either
22
the WCA, its exclusivity or co-employee immunity principles,
or the interplay between the UM/UIM statute and the
WCA." Id. at ¶ 34, 480 P.3d at 1292.
¶36
Here, in contrast, Klabon was injured in the course of his
employment, not by CMI or by a co-employee, but rather by
Canchola-Rodriguez, a third-party tortfeasor. By contracting
to provide CMI-and, by virtue of his employment, Klabon-with
UM/UIM benefits, Travelers agreed to assume liability for
injuries caused by an uninsured or underinsured driver. And
because Klabon's UIM claim arises from a third-party
tortfeasor's liability, it does not violate the
exclusivity principle as set forth in section 8-41-102.
See Ward v. Acuity, No. 22-1117, 2023 WL 4117502, at
*6 (10th Cir. June 22, 2023) (rejecting the UM/UIM
carrier's argument that an employee who sues to recover
benefits under their employer's UM/UIM policy for
injuries caused by a third party would violate section
8-41-102, observing that the argument "mistakenly
assumes that any impact on an employer constitutes a
liability"); Colo. Ins. Guar. Ass'n v.
Menor, 166 P.3d 205, 213 (Colo.App. 2007) (observing
that "[t]he liability of a UM/UIM insurer to the injured
party is contractual" and concluding that an employee
injured by a third-party tortfeasor "was entitled to
recover benefits under both workers' compensation and the
[employer's] UM/UIM policy").
¶37
This reading is consistent with the legislative intent behind
the UM/UIM statute, which was enacted to put victims in the
same position as if the driver who
23
injured them was adequately insured in the first place.
DeHerrera, 30 P.3d at 174 ("UM/UIM coverage
replaces the benefits an innocent injured insured would have
recovered . . . if the tortfeasor had been [adequately]
insured for liability coverage . . . ."). It also aligns
with the well-established public policy of "preventing
the dilution of UM[/UIM] coverage," including by, for
example, prohibiting UM/UIM carriers from reducing their
liability by the amount of any workers' compensation
award. State Farm Mut. Auto. Ins. Co. v. Brekke, 105
P.3d 177, 184 (Colo. 2004); see also §
10-4-609(1)(c) ("The amount of the coverage available .
. . shall not be reduced by a setoff from any other coverage,
including, but not limited to, legal liability insurance,
medical payments coverage, health insurance, or other
uninsured or underinsured motor vehicle insurance.");
see also Nationwide Mut. Ins. Co. v. Hillyer, 509
P.2d 810, 811 (Colo.App. 1973) (voiding an insurance policy
provision that reduced UM/UIM benefits by the amount of the
employee's workers' compensation award).
¶38
Travelers argues that this construction of the WCA,
permitting employees to recover both workers'
compensation and UM/UIM benefits from employers, allows
"duplicative claims and . . . erodes the [WCA's]
system of compensation." But this policy argument
ignores the fact that the WCA and the UM/UIM statute serve
different purposes and offer different benefits. The intent
of the WCA is to assure the quick and efficient delivery of
disability and medical benefits to
24
employees injured in the course of employment, at a
reasonable cost to employers, without the need for
litigation. See § 8-40-102(1). But its benefits
are not all-encompassing. The WCA compensates only an
employee's economic damages, such as medical expenses and
lost wages; it does not provide compensation for noneconomic
damages, such as pain and suffering. Reliance Ins. Co. v.
Blackford, 100 P.3d 578, 580 (Colo.App. 2004).
¶39
The UM/UIM statute, conversely, requires a claimant to first
establish "that the uninsured motorist's fault,
normally negligence, caused the collision," and
compensates an insured only up to policy limits. Newton
v. Nationwide Mut. Fire Ins. Co., 594 P.2d 1042, 1043-44
(Colo. 1979). While the benefits received under these
separate types of coverage may overlap, they are not
co-extensive. See Calderon v. Am. Fam. Mut. Ins.
Co., 2016 CO 72, ¶ 13, 383 P.3d 676, 679 (observing
a similar distinction between UM/UIM coverage and MedPay
coverage and noting that "benefits received under
separate coverages can substantially overlap without
constituting a double recovery").
¶40
And, in any event, the possibility of overlapping benefits
does not allow us to disregard the General Assembly's
intent in passing these statutes. Travelers's policy
argument is best left to the legislature.
25
III.
Conclusion
¶41
For these reasons, we answer the certified question by
concluding that an employee who is injured in the course of
their employment by the acts of an uninsured or underinsured
third-party tortfeasor, and who receives workers'
compensation benefits because of that injury, is not barred
under section 8-41-102 from also bringing a suit to recover
damages against their employer's UM/UIM insurance
carrier.
---------
Notes:
[1] We derive the following facts from
Klabon's complaint and the district court's
certification order.
[2] Compare Ward v. Acuity, 591
F.Supp.3d 1003, 1008 (D. Colo. 2022) (holding that the
WCA's exclusivity provisions barred a plaintiff injured
by a third-party tortfeasor from recovering benefits under
the employer's UM/UIM policy), vacated, No.
22-1117, 2023 WL 4117502, at *7 (10th Cir. June 22, 2023),
with Laurienti v. Am. Alt. Ins. Corp., No.
19-cv-01725-DDD-KLM, 2020 WL 9424250, at *2 (D. Colo. Jan. 3,
2020) (holding that the WCA's immunity provision did not
bar an employee injured by a third-party tortfeasor from
recovering benefits under his employer's UM/UIM
policy).
[3] After oral argument, we requested and
received supplemental briefing from the parties on the issue
of the applicability of section 8-41-104, C.R.S. (2024), to
this case.
[4] Exempt employers under section
8-40-302 include employers of specifically identified
categories of employees, like farm and ranch workers and
employees of religious employers, who receive limited wages
or who work less than full-time hours. §
8-40-302(2)-(4).