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Buck v. Freeman12/12/2000
ev. ed. 1995) (emphasis added).
Finally, of course, Modjeski is not binding on us. No federal district court's interpretation of a state statute binds this court and is only to be used as persuasive authority. Arizonans for Official English v. Arizona, 520 U.S. 43, 66 n.21, 117 S. Ct. 1055, 1068 (1997); 20 Am. Jur. 2d Courts § 169 (1995).
Professor Larson notes that more than 20 appellate courts have concluded that a compensation carrier can be subject to an employee's third-party suit. Larson, supra, §á72.91. He suggests that each statute must be examined carefully because of the variability of language in the separate compensation acts. Id. at § 72.93. A decision construing a statute which equates a compensation carrier with the employer is of little assistance in construing a statute, such as Minnesota's, which does not. Cf. Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325, 1330-31 (8th Cir. 1985) (third-party liability section of Arkansas' act equates carrier with employer thereby immunizing carrier from liability suit). Moreover, Professor Larson cautions that "it would be rash at this time to announce that this or that is the majority rule." Larson, supra, § 72.91.
Following an analysis of the decisions on point, Professor Larson suggests that a distinction should be made between a carrier's function as a payor of benefits and services, on the one hand, and other functions it assumes in the way of direct or physical performance of services related to the act and concludes that for negligent performance of the latter, the carrier should be liable in tort as a "person other than the employer." Id. at § 72.97.
The supreme court of New York has construed statutory language in its act, which is virtually identical to Minnesota's act, and held that the workers' compensation insurer is not the alter ego of the employer entitled to immunity. Cline v. Avery Abrasives, Inc., 409 N.Y.S.2d 91, 96 (N.Y. Sup. Ct. 1978). The language of New York's exclusive remedy statute is:
The liability of an employer * * * shall be exclusive and in place of any other liability whatsoever to such employee *á*á* on account of such injury or death. Id. at 93 (cf. Minn. Stat. § 176.031 which states, "The liability of an employer * * * is exclusive and in the place of any other liability to such employee, * * * on account of such injury or death."). The New York court framed the issue as follows:
he question is not whether an injured employee should be permitted to sue his employer's compensation carrier in common law negligence but, rather, whether the New York legislative intent, as expressed in this state's Workmen's Compensation Law, is to cloak the carrier with the employer's immunity. In short, the decision must be based upon legislative, rather than judicial, policy. Id. at 94-95.
The court examined the statute and found that the definition of "employer" did not include the insurer, and that the insurer was separately defined. The statute was clear and not ambiguous and, therefore, there was little room for judicial interpretation. The court concluded that the carrier could not be equated with the employer, stating "courts must interpret the statute as it is written and not extend it to what courts think it should be." Id. at 96 (emphasis added).
The New York court was unpersuaded by the insurer's threat that it would stop voluntary inspections if it were subjected to third-party suits, observing that the insurer had a financial self-interest to reduce accidents to reduce losses. The Cline court quoted favorably the argument of Professor Larson:
Just how valuable is the insurer's safety inspection contribution if it is
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