Workers’ compensation insurers often pay compensation or benefits under Maine’s Workers’ Compensation Act of 1992, 39-A M.R.S. § 101 et seq., to or on behalf of workers whose injuries are caused by third parties. In those cases where the third party is legally liable for the worker’s injuries, Maine law gives to the workers’ compensation insurer the subrogated right to recover the compensation or benefits paid by the insurer from the third party liable for the worker’s injuries. 39-A M.R.S. § 107. What happens, however, when the third party responsible for the worker’s injuries is judgment proof and has no insurance to cover the insurer’s claims against him? In some cases, the insurer may be able to recover from uninsured/underinsured motorist coverage available to the injured worker.

In the case of Wallace v. City of South Portland, 592 A.2d 1076 (Me. 1991), the Maine Law Court held that the statute allowing a workers’ compensation insurer to recover from a “third person liable for the injury” included the right to recover from an uninsured motorist insurer and not just from the third party responsible for the injury. However, in the Wallace case, the insurance policy providing the uninsured motorist coverage was one that had been purchased by the injured worker’s employer, not by the injured worker himself. The Court distinguished between insurance policies purchased by the injured worker, which are exempt by statute from any subrogation claim by the workers’ compensation insurer, and policies which are purchased by third parties which may provide coverage to the injured worker. Hence, a workers’ compensation insurer’s subrogation claim extends only to insurance policies that are not purchased by the injured worker.

The Wallace case predates Maine’s current workers’ compensation act, which went into effect in 1992. However, the relevant wording of two statutes relied upon by the Wallace Court in reaching its decision were carried over into the current workers’ compensation act verbatim. See 39-A M.R.S. § 107 and § 221(3)(F). There have been no reported decisions in Maine regarding the extent of a workers’ compensation insurer’s claim against uninsured motorist coverage since the Wallace decision.

If you are an insurer in need of assistance regarding subrogation claims for insureds located in the State of Maine, the attorneys at Gosselin & Dubord, P.A. located in Lewiston, Maine have extensive experience with insurer representation and stand ready to assist you. Please contact Attorney David R. Dubord at (207) 783-5261 or drd@gosselindubord.com.