State Snapshot
BASIC RULE
In Colorado, workers’ compensation generally is an employee’s exclusive legal remedy against an employer for injuries arising out of and in the course of employment. Colo. Rev. Stat. §§ 8-41-102 and 8-41-104.
This means that an injured employee usually cannot sue the employer in tort for monetary damages, such as by bringing a negligence or premises liability claim. Instead, he must pursue benefits through Colorado’s workers’ compensation system. Also, he cannot escape the rule merely by alleging gross negligence or reckless conduct.
The exclusivity rule also generally protects employers from derivative lawsuits brought by family members, including claims for loss of consortium or wrongful death arising from a covered workplace injury.
CO-EMPLOYEES
Colorado generally extends the exclusivity rule to co-employees. Thus, an injured worker ordinarily cannot sue a co-worker for negligence that causes a covered workplace injury.
Co-employee immunity is not absolute. The injury must arise out of employment. A coworker who injures an employee because of a purely personal dispute unrelated to work may not be protected.
TYPES OF INJURIES COVERED BY RULE
The exclusivity rule generally covers:
- Physical injuries
- Occupational diseases
- Compensable mental or psychological injuries
- Death resulting from a covered workplace injury
The rule generally does not apply to injuries outside the Workers’ Compensation Act. For example, an employee may be able to pursue an independent discrimination claim or another civil claim involving harm that is not a compensable workplace injury.
INTENTIONAL INJURIES
Colorado has a very narrow exception to exclusivity if the employer deliberately intended to cause the injury. An employer’s knowledge that a dangerous working condition could cause serious injury does not establish the exception unless the employer intended the injury or believed injury was virtually certain to occur.
THIRD-PARTY LAWSUITS
Injured employees generally can sue a third party in tort. For example, an employee injured by a negligent motorist while driving for work may receive workers’ compensation benefits and pursue a civil lawsuit against the driver for negligence. Similarly, an employee injured by defective equipment may be able to bring a product liability action against its manufacturer.
Colorado’s exclusive remedy rule does not provide blanket immunity to every insurer providing coverage connected to a workplace injury. The defense generally protects employers and their workers’ compensation carriers, but not separate UM/UIM insurers when an employee is injured by a negligent third-party motorist.
EMPLOYER FAILS TO SECURE COVERAGE
An employer that fails to secure worker’s compensation coverage in Colorado generally loses its protection against civil lawsuits.
TYPES OF EMPLOYEES NOT COVERED
Certain workers are excluded from mandatory workers’ compensation coverage and therefore may not be subject to the exclusive-remedy rule. Depending on the circumstances, these include:
- True independent contractors
- Certain casual farm and ranch workers
- Certain domestic workers and workers performing maintenance or repairs around private homes
- Certain casual maintenance and repair workers outside the employer’s usual business
- Certain individuals performing limited advisory services for charitable, religious, or similar organizations
- Certain sole proprietors, partners, and corporate officers who are not covered under an applicable policy
These exclusions are subject to statutory qualifications. Some otherwise exempt employers may voluntarily elect workers’ compensation coverage, which can extend exclusivity protections.
STATUTORY EMPLOYERS
A company that contracts out work that is part of its regular business may be considered an employer for workers’ compensation purposes. For example, a general contractor may qualify as the statutory employer of an injured subcontractor’s employee. In that situation, the subcontractor company may receive protection from a civil negligence lawsuit, even though it did not directly hire the injured worker.
RECENT CASES
Klabon v. Travelers Property Casualty Co. of America, 556 P.3d 793 (Colo. 2024)
An HVAC technician was driving his employer’s van while working when another driver ran a red light and struck his vehicle. He received workers’ compensation benefits. He also sought uninsured/underinsured motorist benefits under a separate automobile insurance policy maintained by his employer. The automobile insurer argued that the exclusive-remedy rule barred the claim because the employee had already received workers’ compensation benefits. The Colorado Supreme Court disagreed. It explained that the exclusivity rule does not automatically protect an employer’s separate automobile insurer. The court emphasized that the employee’s injuries were caused by a third-party motorist rather than his employer or a coworker. Consequently, seeking benefits under the employer’s automobile policy did not amount to suing the employer for a workplace injury. The court held that the employee could pursue the uninsured/underinsured motorist claim notwithstanding his receipt of workers’ compensation benefits.
Ryser v. Shelter Mutual Insurance Co., 2021 CO 11, 480 P.3d 1286 (Colo.2021)
Kent Ryser was riding in a vehicle with two co-workers while returning from a work-related trip. One co-worker owned the vehicle, while another was driving. The driver fell asleep at the wheel, causing an accident that seriously injured Ryser. Because the accident occurred during the course of employment, Ryser received workers’ compensation benefits. He also recovered UM/UIM benefits under his own auto policy. Ryser then sought additional UM/UIM benefits from Shelter Mutual Insurance, which insured the vehicle owned by his co-worker. The insurer argued that the claim was barred because the allegedly negligent coworker was immune from liability under the exclusivity rule. The Colorado Supreme Court agreed. It explained that the exclusivity provisions protect not only employers but also co-workers whose conduct causes a covered workplace injury. Because the coworker was immune from tort liability, the injured employee could not use the coworker’s automobile insurance policy to obtain additional recovery.
EXCLUSIVITY RULE IN NEARBY STATES
