In addition to their workers' compensation benefits, the employees sought to recover UM benefits under the terms of the Cincinnati policies.

Trial courts found that the workers' compensation law's exclusive remedy provision in effect at the time of the accidents precluded the employees from receiving UM benefits.

The dispute reached the Supreme Court of Delaware.

Delaware Law

At the time of the employees' accidents, Delaware law provided:

Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.

19 Del. C. § 2304 (2015).

In September 2016, the above-quoted exclusivity provision was amended, with the italicized language below added:

Except as expressly excluded in this chapter and except as to uninsured motorist benefits, underinsured motorist benefits, and personal injury protection benefits, every employer and employee, adult and minor, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.

80 Del. Laws ch. 420, § 1 (2016).

The Delaware Supreme Court's Decision

The court reversed.

In its decision, the court ruled that an injured worker who received workers' compensation benefits was not barred by the pre-amendment version of the exclusivity clause from recovering UM benefits under an automobile liability policy that his or her employer had purchased from a third-party insurance provider.

The court reasoned that an insurance company such as Cincinnati that issued an automobile liability policy insuring an employer's vehicles with coverage including UM coverage was not an “employer” under the workers' compensation law.

The court added that a “basic principle” of workers' compensation law was that if a stranger's negligence caused injury to a claimant in the course of the claimant's employment, the stranger “should not be in any degree absolved of his or her normal obligation to pay damages.” According to the court, in the case of UM coverage, the insurer stepped “into the shoes of the alleged third-party tortfeasor.”

Thus, the court continued, Cincinnati stepped into the shoes of the alleged tortfeasors. Because Cincinnati was being sued in these cases in its capacity as a third-party insurance company standing in the shoes of alleged third-party tortfeasors, the court concluded that the exclusivity provision was not a defense available to Cincinnati.

The case is Henry v. Cincinnati Ins. Co., No. 437, 2018, No. 565, 2018 (Del. June 11, 2019). Attorneys invovled include: Jonathan B. O'Neill, Esquire, and Jennifer D. Donnelly, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill, P.A., Christiana, Delaware, for Appellants, John Henry and Darlene Henry. Francis J. Jones, Jr., Esquire (Argued), and Wilson A. Gualpa, Esquire, Morris James LLP, Georgetown, Delaware, for Appellant, Charles Fritz. Krista E. Shevlin, Esquire, and William A. Crawford, Esquire (Argued), Franklin & Prokopik, Newark, Delaware, for Appellee, Cincinnati Insurance Company.