A

If an employer gets sued for bodily injury as a result of an employee seeing a doctor through an HMO provided by the employer, where is the defense and/or coverage? The answer is in the general liability policy or the workers comp policy, depending on the circumstances.

In our opinion, in such a scenario as you describe, the general liability policy would respond to a claim against the employer. It is true that exclusion (e) applies to employer's liability but that only applies to BI to an employee arising out of and in the course of employment or performing duties related to the conduct of the insured's business. If an employee goes to a doctor and is injured, that is not BI arising out of and in the course of the named insured's business and the exclusion is not applicable. The basis of a claim or suit against the employer would be negligence in choosing a doctor and that is not what exclusion (e) is about.

If by some chance, a court or administrative body decides the employee was injured in the course of employment just by seeing a doctor in an HMO chosen by the employer, the employers liability insurance of the workers comp policy would respond. This part of the WC policy is meant to correspond with the general liability policy. If the injury is due to the employment, the employers liability covers the claim; if the injury is not due to employment, the general liability policy covers the claim.

Your other question deals with leased workers. In your scenario, the key is whether the leased employee is considered an employee of the named insured or of the leasing firm. It is true that the current CGL form equates leased workers with regular employees, but disputes can often arise over the status of a leased employee, especially if a major and costly injury is involved.

There are various guidelines to determine who the worker is really employed by, but the main thing is “control”. If the leasing firm controls the worker's movements and hiring and firing, that is the employer; if the insured does these things, he or she is the employer. If the leased employee is not considered the employee of the insured due to the control factor, then the CGL form would give the insured coverage for a lawsuit by the leased employee. If the leased worker is deemed to be an employee of the insured, then the insured needs the employers liability coverage of a workers comp policy.

So basically, either the CGL form or the employers liability coverage would respond to a lawsuit against the insured in the scenarios you describe. Now, while the insured has the coverage, in order to lessen the chances of any disputes between a general liability insurer and a workers comp insurer, it would better serve the interests of the insured if one insurer handled both coverages.