Family Member and Coverage under Trucker Form

Q

We have a circumstance where the child of an employee was killed in an accident while a passenger in a truck owned by his father. The truck was being operated on behalf of our insured under an owner-operator agreement.

The estate of the child is bringing suit against our insured and the employee (father) and the insurance company is denying coverage for both. The adjuster cites exclusion “4. employee indemnification and employer's liability” as grounds for the denial. Is this an appropriate use of this exclusion?

Ohio Subscriber

A

It is not. Exclusion 4 rules out recovery by an injured employee which is certainly not the case here. Secondly, the exclusion eliminates coverage of a claim lodged by a spouse, child or other close relative of the injured employee alleging injury as a result of the injury to the employee. Nothing here stops coverage for the named insured for a bodily injury claim brought by the estate of an injured third party. The child's relationship to an employee of the named insured is not material.

The employee, owner of the truck, is also covered under the employer's policy. The agreement setting forth “who is an insured” specifies in subparagraph d. that the owner of a borrowed truck used exclusively in the insured's trucking business is also considered an insured.

Note, in a nearby case the owner-operator of a truck is described as an independent contractor rather than an employee. Readers will recognize that many factors enter into the determination of what constitutes one versus the other and such factors were not brought forward, being immaterial to the coverage questions at hand.

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