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Peterson v. Kester12/14/1989
Opinion by JUDGE DUBOFSKY
The issue in this case is whether a workmen's compensation carrier seeking to enforce its statutory right of subrogation is subject to the bar against tort recovery for direct benefits contained in the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.S. (1987 Repl. Vol. 4A) (the No-Fault Act). The district court entered summary judgment against the carrier, CNA Insurance Companies (CNA), finding that the No-Fault Act bars the carrier's subrogation claim. We affirm.
The relevant facts are undisputed. Thomas L. Peterson was injured in an automobile accident during the course and scope of his employment. CNA, the workmen's compensation carrier for Peterson's employer, paid Peterson workmen's compensation benefits totaling $13,955.38.
Thereafter, Peterson, joined by CNA as subrogee, commenced this personal injury action against the third-party tortfeasor, Steven L. Kester (Kester). Peterson died during the pendency of the action of causes unrelated to the automobile accident, and his claims were dismissed. Kester thereupon filed a motion for summary judgment, asserting that CNA's claim was barred under § 10-4-713(1), C.R.S. (1987 Repl. Vol. 4A) of the No-Fault Act. The district court agreed, and entered judgment dismissing CNA's claim.
On appeal, CNA argues that the district court erred in determining that the No-Fault Act modified, or implicitly repealed, the statutory right of reimbursement and subrogation set forth in § 8-52-108(1), C.R.S. (1986 Repl. Vol. 3B), of the Workmen's Compensation Act. We conclude that, under the facts presented here, the district court was correct.
When an employee is injured in a work-related automobile accident, his entitlement to compensation is governed by both the No-Fault Act and the Workmen's Compensation Act.
Section 10-4-707(5), C.R.S. (1987 Repl. Vol. 4A) of the No-Fault Act coordinates benefits and establishes the workmen's compensation coverage as primary:
"When a person injured is a person for whom benefits are required to be paid under the 'Workman's Compensation Act of Colorado', the coverages described in § 10-4-706(1)(b) to (1)(e) [personal injury protection (PIP)] coverage shall be reduced to the extent that [workmen's compensation] benefits are actually available and covered under said act within the time period for payment of benefits under this part 7 prescribed by section 10-4-708."
See generally 2A A. Larson, Workmen's Compensation Law § 71.24(a) & (f) (1988) which indicates Colorado's § 10-4-707(5) statutory scheme is consistent with other jurisdictions in this regard.
Under § 8-52-108(1), an injured employee may seek to enforce the legal liability of a third-party tortfeasor, and in such cases, the workmen's compensation carrier is subrogated to the rights and remedies of the injured employee or his beneficiaries. See Kennedy v. Industrial Commission, 735 P.2d 891 (Colo. App. 1986). However, in work-related automobile accidents, the tortfeasor's legal liability is limited by operation of the No-Fault Act.
Under the No-Fault Act's partial abolition of tort remedies, recovery in tort is limited to losses which fall outside "direct" PIP coverage, that is, non-economic loss and economic loss exceeding PIP benefits. See § 10-4-714(1), C.R.S. (1987 Repl. Vol. 4A). Thus, under § 10-4-714(1), an employee injured in a work-related automobile accident cannot maintain a tort action unless the threshold requir
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