be read to limit the employer’s liability to
third parties for damages arising from a
work-related injury to the employee to
recovery under the workers compensation system.
So, if the employer is subject to either
a third-party general liability lawsuit or
a workers’ compensation claim arising
from injuries to a fetus, is there insur-
ance coverage for the exposure?
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by employees in the course of employment. If the decision noted in the
Snyder is the rule, then the child is not an
employee and derives his claim against
the employer, not as an employee, but as
a separate and distinct party. As for the
employers liability insurance part of the
workers’ compensation policy, this applies to damages the employer must pay
because of injury to an employee. The
coverage does apply to consequential injury to a child, but it is based on injury
to the employee parent, and the derivative injury rulings stress that the claims
of a newborn are due to the baby’s own
injuries and do not arise from injury to
the parent employee.
If the Lockhart ruling is followed, then
the workers’ compensation policy will
provide the benefits required by the specific statute.
This brings up the question of coverage under the commercial general liability (CGL) policy. The CGL form does
offer an employer hope for some insurance protection against the claims of
newborns. Under the Lockhart ruling,
the CGL form would not come into play
due to that policy’s workers’ compensation exclusion. The CGL form does
have an employer’s liability exclusion;
however, this applies to bodily injury
to an employee and not to injuries suffered directly by a fetus. Under the
Snyder ruling, the fetus, having suffered an
injury independent from the mother’s
injuries, is a third-party plaintiff and
can seek damages from the employer.
Unless there is an exclusion that would
prevent coverage, the CGL form will be
applicable to that third-party claim.
An employer should be aware of the
exposure he faces if a pregnant employee is injured on the job. The workers’ compensation policy and the CGL
form are there to offer some insurance protection against claims based
on injuries to an unborn child, but of
course, the best protection is good risk
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David D. Thamann, JD, CPCU, ARM, is
managing editor for FC&S Online. He may
be reached at email@example.com.