Our insured is a contractor and two of its employees got into a fight at the job site; the foreman broke up the fight and fired both employees. Then, the superintendent came along and upheld the firing of the one employee but reinstated the other. This led to a fight between the superintendent and the fired worker in which the superintendent was injured. The superintendent then filed a workers compensation claim but the insurer denied coverage. We believe that the superintendent started the fight in which he was injured, but the insurer has not stated clearly if that was the reason for the denial.

In any case, the injured superintendent has now filed a lawsuit against our insured. The workers comp carrier has stated that it will not provide a defense. We reported this claim to the insured's general liability carrier and it too has denied any coverage or defense, citing the employer's liability exclusion under the CGL form. Please give us your thoughts as to where coverage for our insured is available.

Tennessee Subscriber.

Either the workers comp insurer or the general liability insurer will owe the insured a defense in this lawsuit. Both insurers cannot deny coverage using two sides of the same argument; that is, the workers comp insurer cannot deny coverage saying the injured superintendent was not injured in the course of employment with the general liability carrier also denying coverage by saying that the superintendent was injured in the course of employment. Courts generally will not allow that to happen because the factual situation has to be one or the other; it cannot be both at the same time. If the insurers argue over just what the situation was, then a court will decide based on the facts of the situation. The bottom line is that both insurers are not going to get off the hook; one or the other will have the duty to defend.

As for which insurer is most likely to get the nod, the workers comp carrier should be the one. Assuming that the exclusive remedy of workers compensation is ruled out in this case and the superintendent's employers liability lawsuit is allowed to continue, the key point here is whether the injury suffered by the superintendent arose out of and in the course of employment. Usually, courts look at fights on the job site and try to see if the fight was the result of work-related issues or whether the fight resulted from non-work-related issues. For example, if the superintendent was feuding with the worker over a political question and the feud ended up in a fight, that is not work-related. On the other hand, if the two were fighting over the employee's constant belligerent attitude on the job site, that is work-related and should be a worker comp/employers liability issue.

In this case, according to your letter, the fight apparently arose over the discharge of the employee and the unfair treatment the employee felt he received. We do not believe that something can be more work-related than being fired from the job at the job site. The superintendent was in the course of his employment (that is, making hiring and firing decisions) and as a result, he received bodily injury. The employers liability insuring agreement states clearly that coverage applies in such an instance.

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