汽车专业毕业设计翻译中英文(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.未保险驾车覆盖在工人赔偿的影响和与工作相关的伤害作者：唐伟 Monsees阿谁是共同受伤人的雇员在一次车祸中，而在他或她受雇期间可能有权收回的 政策下，都没有保险的机动车辆保险（密歇根）提供 ，根据工人赔偿法。这情 况提出了一些法律问题。首先，在合作的案例免疫法光员工，在工人赔偿的法律责任是在故障的员工认为他们的人从受害方是 法律上有权收回？ ”其次，从驾车 者的保险政策，可以一人受伤工人恢复？最后，受伤雇员追讨都没有投保机动车福 利和工人补偿？工人赔偿法，287.010 RSM6 起。，提供了对供其规定涉及雇

48、主的雇员受伤的 唯一补偿。然而，这种豁免权延伸到雇主的雇员更有限的方式。虽然对雇员个人诉 讼为失职保持一个安全的工作环境是由工人补偿法抢占，雇员可以起诉一外，雇主的责任范围肯定的疏忽行为同胞雇员提供一个安全的工作环境。Gunnett诉吉拉尔迪耶大厦。和地产公司。70 SW3d 632 （ Mo.App。教育，2002年）。这就提出了一个问题，什么是 肯定的疏忽行为”在国家前rel。泰勒诉华莱士 ， 73 SW3d 620, 623（ 2002年密苏里州），法院指出，对什么是”肯定的疏忽行为没有问题，容易证明了可靠的定义，以及密 苏里州法院基本上适用于规则按个别情况接近参照每个案件的事实。同上。

49、没有一个”积极的疏忽行为 的公司雇员的侵权行为不承担赔偿责任，因此，对受伤雇员 的唯一途径，收集一个疏忽汽车案犯可能是收集驾车从保险政策。传统观点认为，由于医疗水平较高的汽车，另一名雇员司机举行同样的照顾高于 雇主的一般责任标准，提供安全的工作场所经营者需要。机动车辆的运营商举行最高的关心程度。”詹姆斯汉森诉，847 SW2d 476 （密苏里州应用。1992年）；麦 11.01 1996年修订版。保险公司成功地抗辩说，但是，应该不分之间所产生的侵 权行为作出事故涉及汽车和那些没有。在国家前rel。 泰勒诉华莱士，前，无论是受伤雇员及被告正在努力为同一垃圾 公司。原告持有的垃圾车的一侧 ，并从

50、车侧扫，因为它取得一个邮箱。原告据 称，被告：1）未能保持谨慎了望2）胡乱疏忽邮箱击中驾车时；3）草率和疏忽 开车太接近一个固定的对象。虽然原告认为，卡车的经营者无效的谨慎程度最高，法院得出结论的指控没有实物或大于 1的汽车经营者的一般义务的程度更大的 公共道路。因此，司机的疏忽并不构成失职行为的一种肯定必要击败工人的赔偿 权。值得注意的是，尽管法庭列举三个案例来支持其结论，完全不涉及汽车碰撞或 无人照顾的大于普通过失的标准。同上。在 622,注 7。这个问题，许多法院没有约定是，这是否豁免失去了受伤的人的负担表明该 案犯的人从他们的索赔在法律上有权收回按照保险驾车的法律和政策的原则。自密 苏

51、里州几个案件认为，在一个汽车为受伤的员工们带来了不无效的政策，对公众责任保险的索赔排斥，不论机动车财政责任法（ MVFRL ），个驾驶福利保险索赔可能复苏的唯一来源，除了工人的赔偿。303.010恏巴密苏里见，例如，贝克诉迪皮尤，860 SW2d 318（ 1993年密苏里州）。大部分已经审议了这个问题法院认为，法律上有权收回”进口先决条件驾车保险公司保险支付的义务。例如，在 福克斯诉 商业联盟保险有限公司。，413 So.2d 679 （ La.App。第三次循环线。1982年），法院认为，由于工人的赔偿是针对 该公司受伤雇员唯一救济，雇员，雇员不受伤有法律效力的权利，收回合作雇员司机赔偿。

52、因此，受伤工人不是 法律上有权收回。”该雇员被打死，而骑在一个 同事办的汽车，在过程中行事和他的就业范围。参见，贵族诉狼，542 NE2d 1112（俄亥俄州应用。1989年）。在密苏里州法院的问题是发展中国家。没有密苏里州的情况可以作为金标准在这个问题上”引。相反，首先从密苏里州法院的政策区别受伤雇员试图恢复。法院已 经认识到四个可能的情况从中受伤雇员可能无法收回：（1）受伤雇员自己的政策;（二）该雇员的雇主的政策；（3）侵权者/合作雇员氏的政策；或（4）该受伤雇员的 合作伙伴。虽然该法院认为，从上述四个来源的任何复苏是可能的，密苏里州法 院只有解决方案（1）和（2）。虽然密歇根覆盖情况，归

53、根结底是保险合同的建设中的作用，密苏里州法院一 直拒绝允许UM的利益回收发给雇主（方案# 2段）的政策。一个垃圾车车主的雇 员受伤西摩诉雷克伍德山协会，927西南二维405 （密苏里州应用。署1996年）， 当树上的卡车运营商的支持。雇主曾与俄亥俄州险密歇根大学的政策。法院指出， MVFRL，303.010以下。，明确拒绝延长的人身伤害或对就业从事被保险人死 亡，而雇员占密歇根覆盖的要求赔偿责任。被保险人。因此，在雇主的密歇根大学为受伤的雇员提出的索赔政策排斥，对公司的疏忽行为，工人，不 作为无效违反公共政策。同样，在 Thompson诉施累希特，43 SW3d 847，848 （Mo.App

54、。教育，2000 年），雇员受伤，而驾驶他的雇主拥有的卡车司机，他是从后面击中了共同驾 驶的卡车雇员。受伤雇员作出了对他的雇主密歇根大学的政策主张。法院拒绝承保 和理智的，“一f我们要认为原告应属于保险的驾车者的覆盖范围，效果将是无 效的从责任险一位同事排斥，使被保险人的保护，他并没有讨价还价的。伺上。850,理由是408西摩，上文。取消的同胞雇员的赔偿责任排除，不是在法院愿意做贝克。诉 迪皮尤，前，法院讨论了排除的重要性。该研究员仆人排除的目的是分开的法律责任，雇主的赔偿责任向雇员向公众。它免除了繁重的投保雇主的要求根据雇主的公众责任保险，雇员，因为他们已受到了工人的赔 偿法的保护。同上。为322。然而，在克莱默诉保险北美，54 SW3d 613 （密苏里州应用。西部数据2001年）