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Peterson v. Kester12/14/1989
. Ortega v. Industrial Commission, 682 P.2d 511 (Colo. App. 1984).
The purpose of the subrogation provision in § 8-52-108 is to prevent an injured employee from receiving a double recovery. See Continental Casualty Co. v. Gate City Steel, 650 P.2d 1336 (Colo. App. 1982). However, this rationale is abrogated under § 10-4-707(5) to the extent that the workmen's compensation carrier serves as the primary insurer in scope-of-employment automobile accidents. In such cases, the carrier is primarily liable for the injured employee's direct workmen's compensation loss benefits. Therefore, the carrier's statutory right of subrogation is necessarily limited to instances in which the workmen's compensation benefits exceed the direct benefits in either amount or duration.
We base our interpretation not only on the allocation of liability set forth in § 10-4-707(5), but also upon the partial abolition of tort liability mandated under § 10-4-713(1) and § 10-4-714. Because these provisions preclude the injured employee from suing in tort to recover losses covered by minimum PIP coverage, the workmen's compensation carrier, as would-be subrogee, is likewise precluded from seeking reimbursement for such amounts.
We note that our resolution of this question is consistent with that of courts in other no-fault jurisdictions that have addressed the issue. See Great American Insurance Co. v. Queen, 410 Mich. 73, 300 N.W.2d 895 (Mich 1980); Metropolitan Transit Commission v. Bachman's, 311 N.W.2d 852 (Minn. 1981); Vinson v. Berkowitz, 83 A.D.2d 531, 441 N.Y.S.2d 460 (N.Y. App. Div. 1981); Vespaziani v. Insana, 501 Pa. 612, 462 A.2d 669 (Pa. 1983).
We further note that, under our analysis, the workmen's compensation carrier itself would be immune from suit for the recovery of PIP benefits under §§ 10-4-713(1) and 10-4-714 in instances in which the carrier is the primary insurer under § 10-4-707(5) and the worker is the tortfeasor responsible for the automobile accident.
Accordingly, we hold that § 10-4-713(1) of the No-Fault Act, enacted later in time than § 8-52-108, abrogated the subrogation rights under § 8-52-108 to the extent that the workmen's compensation carrier is primarily liable for the injured employee's direct loss benefits, and to the extent that workmen's compensation benefits do not exceed in amount or duration the minimum required coverages set forth in § 10-4-706(1)(b) and (1) (e), C.R.S. (1987 Repl. Vol. 4A).
The judgment is affirmed.
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