Coverage For Worker’s Assault On Coworker Excluded From Commercial Liability Policy Given Facts
Yesterday, the Supreme Court of Alaska had to determine whether an incident in which a man who assisted on a concrete-pouring job was assaulted by another worker at the job site fell within a commercial general liability insurance policy’s employee-exclusion clause. The job site’s owner had purchased general commercial liability insurance but did not purchase workers’ compensation coverage.
The day of the incident, while being assisted by Worker A, Worker B told the company’s owner that he “was agitated by” Worker A‘s presence at the site and that he could not work with Worker A. The owner gave Worker B two Valium tablets in an effort to calm him down but did not warn Worker A about Worker B‘s comments. Worker B subsequently left the job site but returned and assaulted Worker A. Worker A filed a personal injury action against the company, Worker B, and others. The company’s commercial liability insurer filed a declaratory judgment action seeking a declaration of no coverage on grounds that Worker A was the company’s employee because the policy’s definition of employee included volunteers, temporary and casual workers, subcontractors, and independent contractors, and that the policy “excludes bodily injury to any employee arising out of the performance of any duties related to the conduct of the insured’s business.”
The Supreme Court of Alaska explained that had the company purchased a workers’ compensation/employers’ liability policy, it would have had coverage. The court articulated that although a personally motivated assault that occurs on the job is not generally compensable under workers’ compensation because it does not arise out of and in the course of employment, this particular assault did arise out Worker B‘s employment given that the employer “contributed to the episode by engendering, exacerbating, or facilitating the assault.” The court explained: “It is difficult to imagine how [Worker A‘s injuries] could not have arisen out of and in the course of his employment by [the company] given that [Worker A] himself concludes that [the company’s owner] breached his duties to [Worker A] to properly (that is, non-negligently) hire and supervise [Worker B], secure the job site, and warn [Worker A] and [the company’s] other employees about the danger [Worker B] presented. And if [Worker B‘s] attack on [Worker A] were a personally motivated assault not arising out of and in the course of employment, as [Worker A] argues, how could [the company] be held liable under a theory of respondeat superior for [Worker B‘s] assault? As the superior court aptly commented, [Worker A] finds himself in a Catch-22.” Because the injury arose out of and in the course of Worker A‘s employment, the court concluded that coverage for the incident was excluded from the commercial liability policy.
