Employers' liability policy wording specifies four types of claims to which this coverage part responds:
1. Third-party-over actions;
2. Loss of consortium (loss of family service);
3. Consequential bodily injury; and
4. Dual Capacity actions.
Each of these are detailed in the following paragraphs.

Third-Party-Over

While in college I spent one summer working for a manufacturing operation. There I learned a number of new skills and a lot about myself including why I was going to college. During my tenure I witnessed a workers' compensation claim arising out of a 15-year-old getting his hand caught in a large crimping machine working on the machine next to mine (yes, there are a number of things wrong with the situation).

He developed a rhythm of putting in the blank, activating the machine and removing the finished piece. Finished parts were coming out very quickly; but somewhere along the way his timing was thrown off and he put the blank in at precise moment he activated the machine (nope, no safety problems here).

Thousands of pounds of pressure per square inch landed on this kid's hand; but because the machine's motion was unable to make a full resolution it did not release, it trapped my co-worker's hand in the machine and would not let go. The machine was not equipped with an emergency release mechanism.

This kid is screaming and crying (and I'm not ashamed to say I probably would have done the same, even as a 19-year-old), I'm standing there with no idea what to do - I don't want to pull him, the machine is far stronger than I and everyone else is just kind of frozen. Finally my friend helplessly caught in the machine musters enough clarity to reach up and turn the machine off; at which point he is released. I catch him as he falls; he gets to his feet and takes off running with no clear destination. An older, more experienced worker grabs him and puts a tourniquet around his wrist to stop the bleeding.

At the end of this ordeal a 15-year-old kid had two of his middle fingers removed because they were crushed beyond repair.

If there were sufficient grounds to prove negligence, he could have filed a products liability claim against the machine's manufacturer claiming, among other things, insufficient safety in the machine's design and lack of adequate guards.

A suit never materialized, but had it occurred, the equipment manufacturer would have discovered that the guards designed to protect the worker had been removed to speed up production (a fact I learned later). With this information, the manufacturer could have sued the employer for acting improperly.

This is an example of a third-party-over suit where an employer is sued by an "other party" as a direct result of an injury to an employee. Any liability to the "other party" would be excluded from the workers' compensation coverage as discussed previously; and coverage would also be excluded by the two commercial general liability policy exclusions.

Protection and payment can only be found in the employers' liability policy.

Loss of Consortium

Depending on the seriousness of the employee's injury, the family may suffer in ways that aren't compensated or even compensable by the workers' compensation coverage part. These include additional costs to hire outside help to provide the services that were provided by the injured employee, the loss of companionship (which does include sexual relations) and, in some jurisdictions, claims for emotional injury.

For example, additional expenses are incurred because a lawn service has to be hired to care for the injured employee's yard since he can no longer perform that task. A percentage of the lost wages are paid by the workers' compensation policy, but additional expenses are not necessarily contemplated by the workers' compensation policy and must be paid by the employers' liability section.

Consequential Bodily Injury

A work-related disease may be the best example of consequential bodily injury. If the employee were to contract a work-related infectious disease that was subsequently spread to another member of the immediate family, this would be a prime example of consequential bodily injury covered by the employers' liability policy.

To qualify for coverage, the consequential bodily injury must be the direct result of a work-related injury suffered by the employee.

Dual Capacity

Employers may have business-related contact with their employees outside the employee-employer relationship. These additional relationships can be in the form of a product supplier, service provider or as the owner of a premises. Such dual persona creating this increased contact may subject the employer to liability for injury to an employee that may occur at work but one which does not necessarily arise out of and in the course and scope of employment.

Dual persona relationships create employer obligations to the worker independent of those imposed on it strictly as the employer. In essence, the exclusivity of workers' compensation protection is waived in situations where the employer could be liable to the general public for the same injury.

My father worked as a plant electrician for a soft drink bottling company in the mid-1960's. As a "perk" the employees were allowed to take the ready-to-ship bottles directly off the line to drink while at work (they were ice cold and fresh, plus real sugar was still used back then).

Had my dad been poisoned by a contaminated drink ready for shipment to the general public, he, or his heirs, could have sued under the dual capacity doctrine to recover amounts outside the benefits payable under the workers' compensation coverage. In such an instance, the employer ceases being the employer and steps into a second role (a second persona) as a product supplier. The logic is, had this drink gone out to the general public, the supplier would have been faced with a products liability suit; and since the general public could have been exposed to the same injury, the injured employee can access the same redress for injuries suffered as any member of the general public.

Health care workers can also be subject to dual capacity relationships. Doctors and nurses injured in the course of employment may be cared for at the medical facility in which they work. Once the hospital or medical facility undertakes to provide care available to the general public, they have taken on a second persona (that of service provider) and potentially subjected themselves to the dual capacity doctrine.

Conclusion

Many commentaries state that coverage extended from the employers' liability coverage is not limited to the types of claims highlighted above. The next post, which will be the last on employers' liability, will highlight the exclusions to the policy which may indicate what, if any, additional claim situations may be covered by the employers' liability policy. Additionally, the article will discuss employers' liability in monopolistic states and will finish up with a discussion about employers' liability limits.