Matthew McDavitt, Senior Attorney, National Legal Research Group

            In circumstances where an employer subject to the workers' compensation mandate fails to obtain the requisite insurance coverage, such noncompliance can have serious legal consequences. By statute in many states, such noncompliance deprives the employer of the standard employer tort defenses barring a defendant employer from asserting (1) an assumption of risk, (2) the fellow servant rule, and (3) contributory negligence in a tort suit brought by an injured worker.

            From a policy perspective, this statutory defensive penalty was intentionally enacted so as to materially disadvantage noncompliant employers at trial (by removing an employer’s preferred tort defenses), thereby encouraging employers to participate in the system. Bath Mills v. Odom, 168 F.2d 38, 39-40 (4th Cir. 1948); Blinkinsop v. Weber, 85 Cal. App. 2d 276, 279, 193 P.2d 96, 97 (1948).

The Lawletter Vol 40 No 10

Matt McDavitt, Senior Attorney, National Legal Research Group

     It is well settled under workers' compensation law nationally that, generally, worker injuries occurring coming to, or going from, work are not compensable in nature. However, an important exception to this rule exists regarding accidents in which workers are traveling in employer-supplied vehicles, where the worker is off duty but remains on call. For example, given that city police departments receive a benefit by having their police officers on call for duty at a moment's notice while driving their police cruisers, so long as the travel has some relation to employment, injuries received during such travel are compensable.

[W]e are satisfied that the City enjoyed sufficient benefits from Ms. Ross's participation in the take-a-car-home program to affirm the Commission's determination of eligibility. The City does not dispute the Commission's conclusion that the City benefitted from the program by having more officers available for immediate response, from better care of patrol cars, and from increased police visibility. Officers with take-home cars were prepared to respond to emergency calls at any time. These officers always had at hand those items required to be kept in the take-home patrol cars, including their service gun, police radio, identification, flashlight, ticket book, report forms, and flares.