BOND BUILDERS v. COMMERCIAL UNION INS.
3/13/1996
Santos's complaint does not allege facts stating a cause of action for which Commercial Union's Employers Liability Insurance Policy provides coverage. Pursuant to 39-A M.R.S.A. § 104 (Supp. 1995), an
employer who has secured the payment of compensation in
conformity with sections 401 to 407 is exempt from civil
actions, either at common law or under sections 901 to 908;
Title 14, sections 8101 to 8118; and Title 18-A, section 2-804,
involving personal injuries sustained by an employee arising
out of and in the course of employment, or for death resulting
from those injuries.
Pursuant to 39-A M.R.S.A. § 408, an "employee of an employer who has secured the payment of compensation as provided in sections 401 to 407 is deemed to have waived the employee's right of action at common law and under section 104 to recover damages for the injuries sustained by the employee." The exclusivity and immunity provisions of the Workers' Compensation Act bar Santos's common law tort claims. See Li v. C.N. Brown Co., 645 A.2d 606, 607 (Me. 1994) (the exclusivity and immunity provisions of the Workers' Compensation Act bar employees from pursuing civil litigation against their employers for injuries sustained in the course of and arising out of employment). The Employer's Liability Law, now 39-A M.R.S.A. § 901-909 (1995), under certain circumstances, gives the employee the same common law rights he would have against the employer if he had not been an employee at the time of the injury. It does not create an independent statutory cause of action for employment related injuries. Beverage v. Cumberland Farms Northern Inc., 502 A.2d 486, 488 (Me. 1985). Common law tort claims under the Employer's Liability Law thus are barred by the exclusivity provisions of the Workers' Compensation Act. Id. at 489.
The exclusivity provisions of the workers' compensation law do not apply to bar Santos's claim for employment discrimination because it is neither an action at common law nor within Title 39-A, sections 901-908; Title 14, sections 8101 to 8118; or Title 18-A, section 2-804. Commercial Union's employer liability policy, however, specifically excludes from coverage damages arising out of discrimination against any employee. Thus, Commercial Union has no duty to defend pursuant to the Employer Liability section of its policy. Because Commercial Union's policy does not cover Santos's common law tort action or employment discrimination claim, the court erred in ordering Commercial Union to defend Bond Builders.
II.
The comprehensive general liability insurance policy issued by Massachusetts Bay Insurance Company to Bond Builders, Inc. obligates Massachusetts Bay to
pay those sums that the insured becomes legally obligated to
pay as damages because of "bodily injury" . . .
excepting
ny obligation of the insured under a workers' compensation ,
disability benefits or unemployment compensation law or any
similar law.
The policy obligates Massachusetts Bay " o defend any `suit' seeking those damages."
The insuring obligation under the Hanover policy parallels the insuring obligation under the Massachusetts Bay policy only with respect to damages
(a) Not covered by "underlying insurance" or other valid and
collectible insurance available to insured; or
(b) Covered by "underlying insurance" or other valid and
collectible insurance available to the insured except for
exhaustion of a limit of liability or limit of insurance by the
payment of losses.
The Santos complaint, on its face, alleges that Santos received b
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