Aetna Cas. & Sur. Co. v. McMichael
In Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92 (Colo. 1995), the plaintiff was struck by an underinsured passing motorist while sawing concrete joints in front of his employer's vehicle.
The plaintiff sought underinsured motorist benefits under his employer's business auto coverage policy, which included a workers' compensation exclusion similar to the one at issue in the instant case. See Id., at 100 ("This insurance does not apply to... any obligation for which the 'insured' or the 'insured's' insurer may be held liable under any workers compensation . . . law.").
The Supreme Court of Colorado concluded that the UIM benefits the injured plaintiff was seeking from his employer's insurer substitute for benefits that the injured employee would have received from the motorist who caused his injuries. The benefits do not constitute workers' compensation benefits and do not result because of a suit brought by the injured employee against his employer. Because the injured employee's claim is based on the liability incurred by the driver who caused the accident, the exclusions do not apply to the injured employee's claim for UM/UIM benefits. Id.