The Connecticut Appellate Court recently affirmed a trial court decision barring a police officer from recovering underinsured motorist benefits because he was not “occupying” a covered motor vehicle at the time he was injured and, consequently, is limited to his workers’ compensation remedy by the exclusivity provision contained in Conn. Gen. Stat. § 31-284 (a). Ludemann v. Specialty National Ins. Co., AC 30156 (Conn.App., Oct. 20, 2009) affirming 46 Conn. L. Rptr. 147 (Conn. Super., July 11, 2008).
Insured was employed as a town police officer and, while directing traffic, was struck and injured by a motorist. The Insured received workers’ compensation benefits for his injuries and exhausted the coverage of the motorist’s liability insurance. Thereafter, he sought to recover underinsured motorist benefits from the town’s insurer (the “Insurer”). The Insurer denied the Insured’s claim because, at the time he was injured, he was not “occupying” his police cruiser for purposes of Conn. Gen. Stat. § 38a-336 (f), which provides that, “[n]otwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered” by the town’s underinsured motorist coverage. Conn. Gen. Stat. § 31-284 provides for the exclusivity of workers’ compensation benefits.
An arbitration panel agreed with the insurer. The Insured filed an application to vacate the arbitration award with the court, which was denied. Citing Gomes v. Massachusetts Bay Ins. Co., 87 Conn.App. 416 (2005), the trial court found that the Insured was barred under Conn. Gen. Stat. § 38a-336 (f) from recovering underinsured motorist benefits because he was not occupying a covered motor vehicle at the time he was injured. Consequently, he was limited to his workers’ compensation remedy by the exclusivity provision contained in Conn. Gen. Stat. § 31-284 (a). In response to the Insured’s argument that Connecticut’s strong public policy directs that uninsured motorist coverage be provided to insureds when they are not occupants of insured vehicles as well as when they are, the trial court found that, while this policy is significant, the legislature specifically enacted § 38a-336 (f) to address the interplay between uninsured/underinsured motorist benefits and the exclusivity of workers’ compensation.
The Insured also argued that he was a third-party beneficiary of the insurance agreement between his employer and the Insurer and, as such, fell within an exception to the exclusivity provision of workers’ compensation for “agreements” between an employee and employer entitling them to additional compensation. The trial court disagreed, finding that to hold otherwise as the Insured maintained would render § 38a-336 (f) meaningless.
Next, the Insured argued that he was “occupying” the vehicle, under an expansive definition of that term, because he left the lights flashing and was in proximity to the vehicle at the time he was struck. The trial court, however, found in accordance with Gomes that “occupying” requires physical contact with the vehicle.
On appeal, the Appellate Court affirmed and adopted the reasoning of the trial court.