Client is EMT in back of ambulance when hit by tortfeasor. After settling with the tortfeasor he finds out EMSA has UM that covers employees. UM now denies coverage saying that its subrogation was destroyed by the settlement and release. Client did not know of the employer’s coverage at time of settlement and release with tortfeasor. EMSA notified its carrier of the accident and of injury to an employee but the insurance did not notify the employee of the policy benefit. They have filed an MSJ and response due shortly.

Answer: Check out Phillips v. New Hampshire Ins. Co., 263 F.3d 1215 (10th Cir. 2001). Facts are very much like yours: employee didn't know about employer's UM coverage. Tenth Circuit held the employee didn't give up the employer's UM by releasing tortfeasor because he didn't know there was UM.

I have a client semi driver who was rear-ended by a co-employee. Can he access his own UM even though he can’t assert a claim against his co-employee?

Answer: Yes. See:Barfield v. Barfield, 1987 OK 72, 742 P.2d 1107 andTorres v. Kansas City Fire and Marine Ins. Co.,1993 OK 32, 849 P.2d 407 (one whose claim against the tort-feasor is barred by the exclusive remedy of the Workers' Compensation Act can nevertheless recover UM benefits.)

May a commercial UM policy exclude coverage for injury covered by workers' compensation?

Answer: Check out these cases:

Chambers v. Walker, 1982 OK 128, 653 P.2d 931, prohibits offset or credit against the insured's own UM policy for workers' compensation benefits, despite a policy provision to that effect. Bill Hodges Truck Company v. Humphrey, 1984 OK CIV APP 55, 704 P.2d 94. prohibits the converse: an offset of UM benefits paid under the worker's own policy against a workers' compensation recovery. Torres v. Kansas City Fire and Marine Ins. Co., 1993 OK 32, 849 P.2d 407, and Dennis v. Harding Glass Co., 1996 OK CIV APP 105, 929 P.2d 301. prohibit an employer and workers' compensation carrier from offsetting against workers' compensation benefits UM coverage payable under the employer's car policy.

I have a case where trucking company A sold all of its assets to trucking company B, with A retaining all liabilities. Company A has $1M liability insurance with $50,000 retention/deductible. Since A doesn't have the money to pay the retention, is there a viable claim against my client's UM. In other words, as to the $50K would company A be considered uninsured/underinsured?

Answer: I think the vehicle is, indeed, uninsured to the extent of the $50,000 self insured retention, although there is not an Oklahoma case directly addressing this. It seems to me that, to the extent there is no coverage for the first $50,000, the adverse motorist is uninsured to that extent. Also, if the liability policy is an Oklahoma policy, I wonder if there is not statutory coverage for the first $25,000.