North Carolina: Auto Liability Insurer Need not Defend Action Against Co-Employee

An auto liability insurer need not defend a wrongful death action filed against its insured, a corporation that had temporarily borrowed an employee of a separate, but related corporate entity to drive one of its vehicles. Because the borrowed driver was considered the co-employee of an employee of the insured who was killed in a vehicular crash, a provision in the insured’s auto policy, which excluded claims that were compensable under a state workers’ compensation law, applied. The estate of the deceased employee had argued that the driver was not the deceased’s co-employee and that the insurer was, therefore, obliged to defend the civil action (and pay any damages assessed therein). The court stressed that since the driver was a borrowed employee and his actions were under the control of his temporary employer, the sole remedy of the deceased’s estate was under the workers’ compensation scheme.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See State Farm Mut. Auto. Ins. Co. v. Don’s Trash Co., 2019 N.C. App. LEXIS 788 (Sept. 17, 2019)

See generally Larson’s Workers’ Compensation Law, § 111.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see