Colorado § 8-44-101 - Insurance requirements.

§ 8-44-101. Insurance requirements.

(1) Any employer subject to the provisions of articles 40 to 47 of this title shall secure compensation for all employees in one or more of the following ways, which shall be deemed to be compliance with the insurance requirements of said articles:

(a) By insuring and keeping insured the payment of such compensation in the Pinnacol Assurance fund;

(b) By insuring and keeping insured the payment of such compensation with any stock or mutual corporation authorized to transact the business of workers' compensation insurance in this state. If insurance is effected in such stock or mutual corporation, the employer or insurer shall forthwith file with the division, in form prescribed by it, a notice specifying the name of the insured and the insurer, the business and place of business of the insured, the effective and termination dates of the policy, and, when requested, a copy of the contract or policy of insurance.

(c) By procuring a self-insurance permit from the executive director as provided in section 8-44-201, except for public entity pools as described in section 8-44-204 (3), which shall procure self-insurance certificates of authority from the commissioner of insurance as provided in section 8-44-204;

(d) By procuring a self-insurance certificate of authority from the commissioner of insurance as provided in section 8-44-205.

(2) It shall be unlawful, except as provided in sections 8-41-401 and 8-41-402, for any employer, regardless of the method of insurance, to require an employee to pay all or any part of the cost of such insurance.

(3) (a) (I) Except as otherwise provided in subparagraph (II) of this paragraph (a), all public entities in the state shall insure and keep insured the payment of compensation by electing one of the methods provided in subsection (1) of this section. A public entity having an insured payroll of less than one million dollars annually shall not be eligible for self-insurance; except that public entities forming a pool pursuant to section 8-44-204 (3) shall be eligible if the total of all the payrolls of the public entities in the pool exceeds the required minimum.

(II) Any public entity in the state that is participating in the federal prison industry enhancement certification program pursuant to the federal "Justice System Improvement Act of 1979", 18 U.S.C. sec. 1761 (c), shall insure and keep insured the payment of compensation by electing one of the methods provided in subsection (1) of this section; except that the method for insuring the participants of such program need not be the same method selected by the public entity pursuant to subparagraph (I) of this paragraph (a).

(b) For purposes of this subsection (3), the department of human services, by virtue of the self-insurance program established pursuant to section 8-44-203, shall be considered a public entity of the state.

Source: L. 90: Entire article R&RE, p. 520, § 1, effective July 1. L. 94: (3)(b) amended, p. 2635, § 72, effective July 1. L. 2002: (1)(a) amended, p. 1884, § 33, effective July 1. L. 2010: (3)(a) amended, (HB 10-1109), ch. 171, p. 607, § 3, effective August 11.

Editor's note: This section is similar to former § 8-44-101 as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "Brodeur: A Clarification of Defense Counsel Duties in Workers' Compensation Cases", see 37 Colo. Law. 43 (Dec. 2008).

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which required that notice regarding an employer's workmen's compensation insurance be filed with the division of labor instead of the industrial commission.

Colorado law that requires each employer to operate a separately-administered worker's compensation plan is not preempted by the federal Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (ERISA), regardless of whether the ERISA benefits are equal or inferior to the state requirements. Fuller v. Norton, 881 F. Supp. 468 (D. Colo. 1995).

Colorado's worker's compensation laws are not preempted by ERISA as applied to multiple employer welfare arrangements. Fuller v. Norton, 86 F.3d 1016 (10th Cir. 1996).

The notice of issuance of a workmen's compensation policy is required by this section to be filed with the industrial commission. Chevron Oil Co. v. Indus. Comm'n, 169 Colo. 336, 456 P.2d 735 (1969).

But notice of cancellation of a workmen's compensation policy is not required by statute to be given to the commission. Chevron Oil Co. v. Indus. Comm'n, 169 Colo. 336, 456 P.2d 735 (1969).

This section does not negative the right of an employer to insure with a foreign reciprocal insurance exchange licensed under §§ 10-13-101 et seq. to write workmen's compensation liability insurance. Consol. Underwriters v. Indus. Comm'n, 117 Colo. 239, 185 P.2d 1013 (1947).

A lessee's employee cannot be made to suffer by reason of lessor's failure to comply with this section requiring them to obtain insurance or to procure a self-insurance permit. McKune v. Indus. Comm'n, 94 Colo. 523, 31 P.2d 322 (1934).

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).

The relationship of the insured to the insurer in a first-party claim context is significantly different from the relationship which characterizes the third-party claim context. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

A case involving a claim by an employee against a compensation insurance carrier for the tort of bad faith is like a first-party, direct coverage case because workers compensation benefits serve a purpose similar to that served by direct coverage insurance contracts. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

In the first-party context an insurer acts in bad faith in delaying the processing of or denying a valid claim when the insurer's conduct is unreasonable and the insurer knows that the conduct is unreasonable or recklessly disregards the fact that the conduct is unreasonable. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).

Insured and insurer in a workers' compensation context are not in either a fiduciary or quasi-fiduciary relationship. As in a first-party direct coverage case, a workers' compensation claimant has not ceded any right to represent his interests to the insurer. Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007).

Violation of public policy. Where employee was told to pay over to employer the amount he had received as a result of the settlement of his worker's compensation claim as a condition to continued employment, and because the employee declined to do so, retaliation against the employee violated public policy and provides the basis of a common law claim against the employer. Lathrop v. Entenmann's Inc., 770 P.2d 1367 (Colo. App. 1989).

In determining whether to impose sanctions for failure to secure insurance, the only issue is whether the employer had insurance in effect to pay the injured employee's benefits. U.S. Fid. & Guar., Inc. v. Kourlis, 868 P.2d 1158 (Colo. App. 1994); McManus v. Indus. Claim Appeals Office, 81 P.3d 1074 (Colo. App. 2003).

Where the employer had purchased insurance, it was irrelevant that the insurance was not used to pay benefits for the first three years following the injury. U.S. Fid. & Guar., Inc. v. Kourlis, 868 P.2d 1158 (Colo. App. 1994).

Because employer secured compensation for claimant, employer's failure to give the notice described in subsection (1)(b) is not grounds for the imposition of penalties under § 8-43-408 (1). McManus v. Indus. Claim Appeals Office, 81 P.3d 1074 (Colo. App. 2003).

Applied in Meyer v. Indus. Comm'n, 644 P.2d 46 (Colo. App. 1981).