The Henry Saga Continues: No Comp Lien Against Recovery of UIM Benefits Secured By Employee or Employer
The Henry v. Cincinnati Ins. Co. saga continues! If you aren’t familiar with Henry, here’s a little recap - injured employee sought UIM benefits from his personal automobile insurance policy and his employer’s insurance policy - Cincinnati Ins. Co. Upon motion by Cincinnati Ins. Co., the Superior Court dismissed the action, finding that under the pre-amendment version of 19 Del. C. § 2304 - the Exclusivity Provision of the Workers’ Comp. Act - Henry was prohibited from receiving both workers’ comp benefits and UIM benefits under Employer’s UIM insurance policy. Then in June 2019, the Delaware Supreme Court reversed the dismissal and held that the Exclusivity Provision does not prevent an employee from receiving UIM benefits provided by an insurance policy furnished by an employer’s third-party insurance company.
The Comp Carrier (Eastern Alliance Ins. Co.) then filed a Motion to Intervene to assert a lien against any recovery by Henry under his personal UIM policy and his employer’s UIM policy. In Henry v. Cincinnati Ins. Co., N18C-03-092 ALR (Apr. 19, 2021), Judge Rocanelli denied the Motion, holding that Adams v. Delmarva Power & Light Co. and Simendinger v. Nat’l Union Fire Ins Co. are still good law; and therefore, Employer and Comp Carrier do not have a right to intervene because:
There is no statutory right to assert a comp lien against UIM benefits recovered under an employee’s personal insurance policy; and
There is no statutory right to assert a comp lien against UIM coverage purchased by the employer.
The Court further held that UIM Carriers do not “step into the shoes of the alleged tortfeasor” except to the extent that fault by the alleged tortfeasor must be established. Thus, the Comp Carrier’s argument that the UIM carrier “steps into the shoes” of the underlying tortfeasor and therefore personal injury damages payable to Henry are subject to a lien under 19 Del. C. § 2363 was not persuasive.
We look forward to seeing you all at the Workers’ Compensation Seminar on May 4, 2021. Be on the lookout for the Spring 2021 Case Law Update!
Best,
Caroline Kaminski
