Colorado § 8-41-103 - Availability of common-law defenses.

§ 8-41-103. Availability of common-law defenses.

If an employer has complied with the provisions of articles 40 to 47 of this title, including the provisions thereof relating to insurance, and an action is brought against such employer or such employer's insurance carrier to recover damages for personal injuries or death sustained by an employee who has elected not to come under said articles, such employer and such employer's insurance carrier shall have all the defenses to the action which they would have had if said articles and part 2 of article 2 of this title had not been enacted.

Source: L. 90: Entire article R&RE, p. 476, § 1, effective July 1.

Editor's note: This section is similar to former § 8-42-103 as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "Derogation of the Common Law Rule of Contributory Negligence", see 7 Rocky Mt. L. Rev. 161 (1935). For article, "One Year Review of Torts", see 35 Dicta 53 (1958).

Annotator's note. Since § 8-41-103 is similar to § 8-42-103 as is existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

Workmen's compensation act does not bar a claimant from bringing a tort action in state court for damages arising from bad faith in the processing of his request for rehabilitation. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985); Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007).

In a case involving a claim by an employee against a compensation insurance carrier for the tort of bad faith, conduct constituting bad faith can occur in the unreasonable refusal to investigate a claim and to gather facts. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

The duty of good faith derives from the relationship, arising from the underlying insurance or compensation obligation between an insured claimant and the provider of benefits, and precedes official intervention and permeates all of the dealings between the parties. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

The duty of an insurer under the act to provide benefits and compensation is factually and analytically distinct from its duty to deal in good faith with claimants, even though such duties necessarily involve a common underlying physical injury. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

An employee covered by compensation insurance required by the act stands in the same position as an insured in a private insurance contract. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

An order by an official body securing benefits for a claimant does not and cannot remedy separate injuries caused by prior bad faith acts by the provider of benefits resulting in delay or denial of benefits. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

There is no overlap of jurisdiction between rulings of workers compensation agencies on statutory issues committed to them and rulings of courts of law on the tort of bad faith. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

Co-employee cannot be held liable for injury to co-worker who has elected to reject workers' compensation coverage. The availability of common law defenses to employers does not extend to employees and thereby make them subject to suit. Kelly v. Mile Hi Single Ply, Inc., 873 P.2d 13 (Colo. App. 1993).

In reconciling § 8-41-401 (3) and this section, court upheld trial court's reasoning that corporate officer who has elected to reject coverage may bring tort action only against employer. Whether or not a corporate officer has elected to reject such coverage, employees covered by Workers' Compensation Act are still limited to their rights and remedies under the Act. Kelly v. Mile Hi Single Ply, Inc., 873 P.2d 13 (Colo. App. 1993).