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Hull v. Town of Plymouth & A.3/2/1999
carriers from coverage obligations to injured workers, cf. Hughes v. Chitty, 283 F. Supp. 734, 739 (E.D. La. 1968), aff'd, 415 F.2d 1150 (5th Cir. 1969), such carriers may be held liable for work-related injuries caused by their independent torts, see Sims v. American Casualty Company, 206 S.E.2d 121, 130-31 (Ga. Ct. App.), aff'd, 209 S.E.2d 61 (Ga. 1974).
The defendants next argue that "the question of insurance carrier immunity under the Workers' Compensation should turn upon a quid pro quo analysis, not upon the subject matter of the insurance provided." Such analysis, however, does not support the defendants' position. The workers' compensation scheme is based on a "fundamental quid pro quo," Thompson v. Forest, 136 N.H. 215, 219, 614 A.2d 1064, 1067 (1992), which is "the tort immunity conferred on the employer . . . [in exchange] for providing no-fault workers' compensation benefits." Id. at 218, 614 A.2d at 1066 (emphasis added) (quotation omitted). At issue here, however, is not tort liability, but the uninsured/underinsured motorist carrier's contractual liability.
" he uninsured motorist carrier does not insure the tortfeasor against liability, but insures the employee against the risk of inadequate compensation if he is injured in an accident with an uninsured motorist. The obligation of the uninsured motorist carrier arises out of contract, although that obligation is precipitated by a third-party's tortious act." Merchants Mut. Ins. Group v. Orthopedic Prof. Ass'n, 124 N.H. 648, 657-58, 480 A.2d 840, 845 (1984).
The employer's tort immunity is left wholly intact by the employee's recovery of uninsured/underinsured motorist benefits, and the possibility of double recovery is offset by the availability of a workers' compensation lien. See RSA 281-A:13, I(b); Rooney v. Fireman's Fund Ins. Co., 138 N.H. 637, 641, 645 A.2d 52, 54-55 (1994). Thus, allowing an employee to collect benefits from the employer's uninsured/underinsured motorist insurer does not upset the fundamental quid pro quo upon which the Workers' Compensation Law is based.
Finally, the defendants urge us to follow a number of cases from other jurisdictions holding that their workers' compensation statutes bar an employee from obtaining uninsured/underinsured motorist benefits from the employer's insurer. We decline to do so.
Affirmed.
JOHNSON and THAYER, JJ., sat but did not participate in the decision; the others concurred.
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