During a strike recently at our insured's plant, a covered auto driven by one of the insured's employees struck a picketer. The picketer was also an employee of the insured. Would the business auto policy of our insured apply to a claim for bodily injury, or would the exclusions dealing with “arising out of and in the course of” employment eliminate coverage?

Pennsylvania Subscriber

The relevant exclusions are numbers four and five on the business auto policy (BAP); exclusion four pertains to employer liability and exclusion five pertains to injury to a fellow employee. Both exclusions emphasize the “arising out of and in the course of” employment language, and then follow up with the “performing duties related to the conduct of the insured's business” phrase. These phrases make the point that bodily injury to an employee while in the furtherance of the insured's business is not meant to be covered under a auto policy. It would be a stretch to consider someone on strike to be engaged in the furtherance of the insured's business.

 “In the course of employment” is a phrase usually connected with workers compensation, but the phrase has not been clearly defined in state workers compensation statutes. So, it has fallen to courts to determine what that phrase means, and they have generally held that “in the course of employment” means the work done by the employee at the direction of the employer, and which is meant to benefit the employer. A worker on strike is not walking the picket line at the direction of the employer and most certainly is not acting to benefit the employer.

So, if the insured employer is held legally responsible for the injury to the picketer, the BAP will respond to the claim. The driver of the covered auto is also an insured since he is driving an owned covered auto with the permission of the named insured, and if he is held liable for the bodily injury, there is no exclusion on the BAP to prevent coverage for him (unless, of course, the bodily injury was expected or intended by the driver).

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