Colorado § 8-41-104 - Acceptance as surrender of other remedies.

§ 8-41-104. Acceptance as surrender of other remedies.

An election under the provisions of section 8-40-302 (5) and in compliance with the provisions of articles 40 to 47 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, such employer's insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries or death of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles, and shall bind the employee personally, and, for compensation for such employee's death, the employee's personal representatives, surviving spouse, and next of kin, as well as the employer, such employer's insurance carrier, and those conducting their business during bankruptcy or insolvency.

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

Editor's note: This section is similar to former § 8-43-104 as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "Employer's Liability for Occupational Diseases", see 16 Rocky Mt. L. Rev. 60 (1943). For article, "One Year Review of Torts", see 38 Dicta 93 (1961). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Law", see 34 Colo. Law. 95 (Apr. 2005).

Annotator's note. Since § 8-41-104 is similar to § 8-43-104 as it 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.

This section applies only to remedies against the immediate employer. Chartier v. Winslow Crane Serv. Co., 142 Colo. 294, 350 P.2d 1044 (1960).

So that this section does not operate to relieve a third person. Chartier v. Winslow Crane Serv. Co., 142 Colo. 294, 350 P.2d 1044 (1960).

Under this section a covered employee simply has no option to sue his employer at common law for damages in the absence of specific acts of noncompliance with the act or misconduct on the part of his employer. Varsity Amusement Co. v. Butters, 155 Colo. 330, 394 P.2d 603 (1964).

Thus, a covered employee is not precluded under the theory of election of remedies from pursuing his claim under the act after a pretrial agreement on liability because an election of remedies implies that a party has a choice of remedies at the time he files his suit, a choice which a covered employee does not have. Varsity Amusement Co. v. Butters, 155 Colo. 330, 394 P.2d 603 (1964).

However, where employer fails to comply with act, employee may proceed under the act or at law. Where an employer fails to comply with the insurance features of the workmen's compensation act, an injured employee has the right, at his option, to proceed under the provisions of the act or by a common-law action for negligence. Indus. Comm'n v. Schaefer Realty Co., 98 Colo. 445, 56 P.2d 51 (1936); Sharmar Nursing Home v. Indus. Comm'n, 160 Colo. 197, 416 P.2d 161 (1966).

But by electing to pursue his remedy at law for damages, an injured employee forfeits his right thereafter to resort to the remedy offered by the workmen's compensation act. Indus. Comm'n v. Schaefer Realty Co., 98 Colo. 445, 56 P.2d 51 (1936).

When an employer-employee relationship exists under the act, the immunity from common-law suits should be broadly construed. Colo. Comp. Ins. Auth. v. Baker, 955 P.2d 86 (Colo. App. 1998).

"Personal injury" limited. Because "personal injury" is not defined by the workmen's compensation act, it does not include damages which are based mainly on mental suffering and humiliation, and only peripherally on physical suffering and pain. Luna v. City & County of Denver, 537 F. Supp. 798 (D. Colo. 1982).

"Personal injury" in § 8-41-102 and "personal injuries" in this section refer to the job-related physical or mental injuries of an employee, and, consequently, the Workers' Compensation Act's exclusivity provision bars action for or on account of such injuries of an employee. Serna v. Kingston Enters., 72 P.3d 376 (Colo. App. 2002).

Economic liability does not qualify as a compensable "personal injury" under the Workers' Compensation Act of Colorado, therefore, indemnity action is not barred under the act's exclusivity provision. Serna v. Kingston Enters., 72 P.3d 376 (Colo. App. 2002).

Intentional torts are covered under this act, and compensation awards may be made for injuries suffered from intentional acts of coemployees. Ellis v. Rocky Mt. Empire Sports, Inc., 43 Colo. App. 166, 602 P.2d 895 (1979).

Intentional wrongs arising out of the course of employment are covered under Colorado's compensation scheme. Kandt v. Evans, 645 P.2d 1300 (Colo. 1982).

Intentional infliction of emotional distress. A claim for intentional infliction of emotional distress is not barred by the workmen's compensation act. Luna v. City & County of Denver, 537 F. Supp. 798 (D. Colo. 1982); Spulak v. K Mart Corp., 664 F. Supp. 1395 (D. Colo. 1985); Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987).

Where the entire complaint is based on infliction of emotional distress, the plaintiff may be ineligible to receive compensation for the present claim under the workmen's compensation act, and therefore may properly bring an action in tort. Vigil v. Safeway Stores, Inc., 555 F. Supp. 1049 (D. Colo. 1983); Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987).

If an injury comes within the coverage of the act, an action for damages is barred even though a particular element of damages is not compensated for. Colo. Comp. Ins. Auth. v. Baker, 955 P.2d 86 (Colo. App. 1998); McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42 (Colo. App. 1998).

A subsequent civil action to pursue equitable claims for unjust enrichment, money had and received, restitution, and money paid by mistake, is prohibited where the claims, in effect, reopen an administrative proceeding that has previously been closed and where there was no separate injury or tort for which a civil recovery could be sought. Colo. Comp. Ins. Auth. v. Baker, 955 P.2d 86 (Colo. App. 1998).

Exclusive remedy for negligence and intentional torts. An employee's exclusive remedy for his negligence and intentional tort claims is as provided for under the workmen's compensation act. Ellis v. Rocky Mt. Empire Sports, Inc., 43 Colo. App. 166, 602 P.2d 895 (1979).

Exclusivity provisions of Workers' Compensation Act bar discharged employee's claim against former employer for outrageous conduct in termination process. Weissman v. Crawford Rehab. Servs., 914 P.2d 380 (Colo. App. 1995).

Wrongful death action brought by employee's nondependent parents, based on the death of the employee that occurred in the course of the scope of the employee's employment, is strictly derivative and barred by the exclusivity provisions of this section, even though the parents suffer their own distinct injuries. Thus, summary judgment was appropriate and parents could not maintain an action under either the federal Fair Labor Standards Act or the Colorado Youth Employment Opportunity Act. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998).

Doctor hired by a company to treat its employees is not a co-employee exempted from suit by this section for injuries caused in treatment, but may be sued in a malpractice action under § 8-52-108. Wright v. District Court, 661 P.2d 1167 (Colo. 1983).

A plaintiff's co-employee is not immune from a tort claim for damages by virtue of this section if the co-employee's tortious conduct did not arise "out of" and "in the course of" the tortfeasor's employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991).

A co-employee who causes injury to a worker is not immune from a plaintiff's tort claim for damages when the co-employee's conduct derives from matters personal to the employee or from a neutral source unrelated to the employee's employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991).

PART 2

COVERAGE