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State Farm Mutual Automobile Insurance Co. v. Royston8/23/1991
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Royston argues that " he clear import of such a provision is to attempt to avoid any lien a worker's compensation insurer or self-insured might have with respect to proceeds paid under the uninsured motorist coverage." State Farm agrees that this contractual provision, commonly referred to as the workers' compensation "set-off" clause, is intended to preclude duplicative payment of uninsured motorist and workers' compensation benefits. However, State Farm argues, and we agree, that the set-off provision applies only in those cases where an insured was injured while in the course and scope of his employment, entitling him to workers' compensation benefits, and where such injuries were caused by an uninsured stranger to the employment who was not protected by the workers' compensation immunity.
In Dodson v. Aetna Casualty and Surety Co. , 649 F. Supp. 1455 (E.D. Va. 1986), rev'd , 851 F.2d 736 (4th Cir. 1988), the federal court adopted the very argument advanced by Royston in this case and held that uninsured motorist benefits be paid to plaintiff with an offset for workers' compensation coverage. The Virginia Supreme Court, on a certified question from the Fourth Circuit Court of Appeals, found that the condition precedent interposed by the unambiguous phrase "legally entitled to recover as damages" was not met, thus rendering the question of set-off moot. Aetna Casualty and Sur. Co. v. Dodson , 235 Va. 346, 367 S.E.2d 505 (1988). Similarly, we find the set-off provision here to be inapplicable since Royston is not "legally entitled" to uninsured motorist benefits.
III.
We acknowledge that Royston's recovery of workers' compensation benefits will not fully compensate him for the injuries received as a result of the accident. However, under the circumstances of this case, we simply see no intent on the part of the legislature to allow recovery of benefits under both the workers' compensation and uninsured motorist statutes. Under the current state of the law, such recovery is precluded and can only be afforded by legislative action amending the law. Accordingly, we answer the certified question in the negative.
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