CO Code § 8-41-102 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 41 - Coverage and Liability|Part 1 - Abrogation of Defense|§ 8-41-102. Liability of Employer Complying

 An employer who has complied with the provisions of articles 40 to 47 of this title, including the provisions relating to insurance, shall not be subject to the provisions of section 8-41-101 ; nor shall such employer or the insurance carrier, if any, insuring the employer's liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.   History. Source: L. 90: Entire article R&RE, p. 476, § 1, effective July 1.    Editor's note:   This section is similar to former § 8-42-102 as it existed prior to 1990.   ANNOTATION   Law reviews. For article, “Employer's Liability for Occupational Disease ”, see 16 Rocky Mt. L. Rev. 60 (1943). For comment on Ward v. Denver & R. G. W R. R. (119 F. Supp. 112 (D. Colo. 1954 )), see 27 Rocky Mt. L. Rev. 106 (1954). For comment on Finn v. Indus. Bd. (165 Colo. 106 , 437 P.2d 542 (1968)), see 45 Denver. L. J. 780 (1968). For article, “Labor and Employment Law”, which discusses Tenth Circuit decisions dealing with exclusive remedy, see 64 Den. U. L. Rev. 271 (1987). For article, “Bad Faith Claims and the PIP Statute: View of Plaintiff's Counsel”, see 17 Colo. Law. 2163 (1988). For article, “The Positional Risk Doctrine -- Compensability of ‘Neutral Force' Injuries”, see 17 Colo. Law. 2375 (1988). For article, “Work-Related Stress Claims”, see 18 Colo. Law. 1529 (1989).   Annotator's note. Since § 8-41-102 is similar to § 8-42-102 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 abolishes all common law rights and remedies in an employee action against employer for injury except as provided in the act. Ward v. Denver & R. G. W. R. R., 119 F. Supp. 112 (D. Colo. 1954 ); Thomas v. Farnsworth Chambers Co., 286 F.2d 270 (10th Cir. 1960), rev'g 183 F. Supp. 764 (D. Colo. 1960 ); Finn v. Indus. Comm'n, 165 Colo. 106 437 P.2d 542 (1968); Cont'l Sales Corp. v. Stookesbury, 170 Colo. 16 , 459 P.2d 566 (1969); Rodriguez v. Nurseries, Inc., 815 P.2d 1006 (Colo. App. 1991).   When an employer has brought itself within the ambit of the workmen's compensation act, it is not subject to a common law action for damages, and the employee is limited to the remedies specified in the act. Alexander v. Morrison-Knudsen Co., 166 Colo. 118 , 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969); Hilzer v. MacDonald, 169 Colo. 230 , 454 P.2d 928 (1969).   The common law rule that a worker can simultaneously be the employee of two persons applies to cases arising under the workers' compensation act. The rule allows an employee to be simultaneously in the general employment of one employer and in the special employment of another, provided the employee understands that he or she is submitting to the control of the special employer. In the dual employment situation, the employee's only remedy for an injury sustained while in the course of employment with the borrowing employer is through worker's compensation. A separate tort action against the special employer is barred. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   Hence, this section applies only to employers and employees covered by the workmen's compensation act, an employee being any person under any contract of hire, express or implied. Cont'l Sales Corp. v. Stookesberry, 170 Colo. 16 , 459 P.2d 566 (1969).   The workers' compensation act provides exclusive remedies for compensation of an employee by an employer for work-related injury. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Bailey v. C.P. Const., Inc., 837 P.2d 277 (Colo. App. 1992).   Therefore, an employer who has complied with the insurance provisions of the act is immune from any common law liability for work-related injuries. Bailey v. C.P. Const., Inc., 837 P.2d 277 (Colo. App. 1992).   Officer who rejected workers' compensation coverage may pursue remedies in common law, but recovery is limited to the cap found in § 8-41-401 of the Act. Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo. 1995).   Comparison to Montana statutes. Sections 92-203 and 92-204, R.C.M. 1947, of the Montana workmen's compensation act are nearly identical in thrust and seemingly as all-encompassing as this section. Pust v. Union Supply Co., 38 Colo. App. 435, 561 P.2d 355 (1976), rev'd sub nom. Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316 , 572 P.2d 148 (1977) third-party indemnification issue, and aff'd, 196 Colo. 162 , 583 P.2d 276 (1978).   Intentional wrongs are covered. 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).   An employer may be held liable to an employee for common law damage claims for intentional torts committed by the employer or the employer's alter ego if the employer deliberately intended to cause the injury and acted directly rather than constructively through an agent. Schwindt v. Hershey Food Corp., 81 P.3d 1144 (Colo. App. 2003).   Exclusivity provisions of the workers' compensation act bar claim against employer for gross negligence but not intentional torts. Schwindt v. Hershey Food Corp., 81 P.3d 1144 (Colo. App. 2003).   An employee injured during the course of employment cannot claim benefits under his or her employer's uninsured/underinsured motorist policy in addition to workers' compensation. Markel Ins. Co. v. Hollandsworth, 400 F. Supp. 3d 1155 (D. Colo. 2019 ).   Immunity under the workers' compensation act does not bar an injured employee's recovery of uninsured/underinsured motorist (UM/UIM) benefits from his or her personal insurer. Am. Family Mut. Ins. v. Ashour, 2017 COA 67 , 410 P.3d 753.   The phrase “legally entitled to recover damages”, as used in § 10-4-609 , means that the insured must be able to establish that the fault of the uninsured motorist gave rise to damages and the extent of those damages. Am. Family Mut. Ins. v. Ashour, 2017 COA 67 , 410 P.3d 753.   The public policy expressed in § 10-4-609 requires that UM/UIM insurance policies must provide coverage for the protection of a motorist injured by the negligence of a driver who is immune from liability. Am. Family Mut. Ins. v. Ashour, 2017 COA 67 , 410 P.3d 753.   The policies underlying the workers' compensation act's exclusivity provisions and the UM/UIM statute do not conflict and, therefore, an injured employee is entitled to make a claim for UM/UIM benefits against his or her personal auto insurer. Am. Family Mut. Ins. v. Ashour, 2017 COA 67 , 410 P.3d 753.   Exclusivity provisions of the Workers' Compensation Act and the related co-employee immunity rule bar an employee who was injured in the course and scope of employment by a co-employee's negligence in driving a car from receiving UM/UIM motorist benefits under an insurance policy maintained by another co-employee who owned the car. Ryser v. Shelter Mut. Ins., 2019 COA 88 , __ P.3d __.   Cause of action based on a contractual right of indemnity is independent of the exclusive jurisdiction provisions of the act. Borroel v. Lakeshore, Inc., 618 F. Supp. 354 (D. Colo. 1985 ).   Recovery under the act is meant to be the exclusive remedy for workers covered by its provisions. Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo. 1995).   Exclusivity provisions of the workers' compensation act do not bar an action for mental suffering resulting from a breach of the employment contract. Allabashi v. Lincoln Nat'l Sales Corp., 824 P.2d 1 (Colo. App. 1991).   Workers' compensation act constitutes the exclusive remedy available to employee if employee asserts claim of intentional tort committed by employer's agent. Digliani v. City of Fort Collins, 873 P.2d 4 (Colo. App. 1993).   Employees may not circumvent exclusive remedy provisions by framing their claims as breach of contract, breach of implied contract, or promissory estoppel. Digliani v. City of Ft. Collins, 873 P.2d 4 (Colo. App. 1993); McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42 (Colo. App. 1998).   “Personal injury” in this section and “personal injuries” in § 8-41-104 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).   Exclusive remedy provisions of workers' compensation act barred city employees' common law claims against city for exposure to toxic chemicals at city facility. Employer who complied with the provisions of the act was not subject to liability under common law rights and remedies for death of or personal injury to any employee. Digliani v. City of Fort Collins, 873 P.2d 4 (Colo. App. 1993).   Economic liability does not qualify as a compensable “personal injury” under the workers' compensation act, therefore, indemnity action is not barred under the act's exclusivity provision. Serna v. Kingston Enters., 72 P.3d 376 (Colo. App. 2002).   An employee's wife's rights are strictly derivative under the act and are controlled by the all-inclusive election of the section. Alexander v. Morrison-Knudsen Co., 166 Colo. 118 , 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969).   An employer who is subject to the provisions of the act cannot be made a third-party defendant in an action wherein one of its employees is suing a stranger to the employer-employee relationship for injuries sustained while engaged in the course of his employment. Ward v. Denver & R. G. W. R. R., 119 F. Supp. 112 (D. Colo. 1954 ); Hilzer v. MacDonald, 169 Colo. 230 , 454 P.2d 928 (1969); Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981).   Therefore, this section amounts to a legislative grant of immunity from common law liability in return for vicarious statutory liability and the extent of the legislative intent is of course to be discerned from the particular language used in the enactments. Thomas v. Farnsworth Chambers Co., 286 F.2d 270 (10th Cir.), rev'g 183 F. Supp. 764 (D. Colo. 1960 ).   Workers' compensation carrier is granted the same immunity from suit by the injured employee as the employer has. Therefore, no third-party action could be brought against a carrier for negligently conducting safety inspections undertaken pursuant to its capacity as carrier. McHarque v. Stokes Div. of Pennwalt Corp., 649 F. Supp. 1388 (D. Colo. 1986 ).   Employer not liable for contribution. Because the workmen's compensation act immunizes an employer from tort liability to a covered employee, the employer is not “jointly liable in tort” and therefore contribution is barred. Hammond v. Kolberg Mfg. Corp., 542 F. Supp. 662 (D. Colo. 1982 ).   Section bars only actions founded on compensable injuries. The bar of workmen's compensation extends only to actions founded upon injuries compensable under the act. Bennett v. Furr's Cafeterias, Inc., 549 F. Supp. 887 (D. Colo. 1982 ).   An employer who is immune from common-law liability for an injury cannot become “jointly or severally liable in tort” so as to trigger a right of contribution under § 13-50.5-102 . Greer v. Intercole Automation, Inc., 553 F. Supp. 275 (D. Colo. 1982 ).   Act does not apply to injuries sustained when claimant has ceased his employment relationship. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).   Factual question existed as to whether sexual assault on female employee by employer “arose out of” employment, making injury compensable and employer accordingly immune from suit. Stamper v. Hiteshew, 797 P.2d 784 (Colo. App. 1990).   As a matter of policy, sexual harassment is not a risk inherently connected to the employment relationship. Except in the most unusual cases, acts of harassment are highly personal and fall into the category of inherently private assaults that do not arise from employment. Therefore, sexual harassment claims are not barred by the exclusive remedy provisions of the Workers' Compensation Act. Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001).   For employer to be absolved of liability for third-party indemnification claim, the employee's right to compensation under this act must first exist. Garrett v. Miller, 44 Colo. App. 440, 619 P.2d 780 (1980).   Indirect subjection under rules of indemnity. The workers' compensation exclusive remedy provision does not permit an employer to be indirectly subjected under rules of indemnity to liability to which it could not be directly subjected. Tex-Ark Joist Co. v. Derr & Gruenewald Const., 719 P.2d 384 (Colo. App. 1986), aff'd, 749 P.2d 431 (Colo. 1988).   The fact that an award may deprive a claimant of a common law action does not make such a statute unconstitutional because a different remedy has been provided the employee by the general assembly which is within its power. Finn v. Indus. Comm'n, 165 Colo. 106 , 437 P.2d 542 (1968), O'Quinn v. Walt Disney Prods., Inc., 177 Colo. 190 , 493 P.2d 344 (1972).   When an employee accepts the terms of the act his common-law action against his employer does not constitute an election of remedies; for his remedy against his employer is under the act, and therefore he cannot make the choice which the doctrine of election of remedies contemplates. State Comp. Ins. Fund v. Foulds, 167 Colo. 123 , 445 P.2d 716 (1968).   And although a workman will be required to forego a negligence action against a general contractor or real property owner, he will be assured that regardless of fault, the more solvent general contractor or real property owner stands behind and secures the workmen's compensation liability of the workman's immediate employer. O'Quinn v. Walt Disney Prods., Inc. 177 Colo. 190 , 493 P.2d 344 (1972).   An exculpatory clause like this section shall be construed to destroy the common-law right of action of an injured and compensated employee of a subcontractor against a negligent general contractor. Thomas v. Farnsworth Chambers Co., 286 F.2d 270 (10th Cir.), rev'g 183 F. Supp. 764 (D. Colo. 1960 ); Whiting v. Farnsworth Chambers Co., 293 F.2d 45 (10th Cir. 1961).   For where the subcontractor has secured compensation for his employees, a general contractor is under no statutory liability, and is subject to common-law liability. Thomas v. Farnsworth Chambers Co., 286 F.2d 270 (10th Cir.), rev'g 183 F. Supp. 764 (D. Colo. 1960 ).   A general contractor may be liable as a third party tortfeasor to these injured and compensated employees of a subcontractor. Thomas v. Farnsworth Chambers Co., 286 F.2d 270 (10th Cir.), rev'g 183 F. Supp. 764 (D. Colo. 1960 ).   Furthermore, under this section and § 8-48-102 , a landowner is not immune from common-law liability where an employee of a contractor working on its land is injured by the negligence of a servant of the landowner and where the contractor is himself an employer, as defined in the workmen's compensation act, and carries compensation insurance covering such employee. Great W. Sugar Co. v. Erbes, 148 Colo. 566 , 367 P.2d 329 (1961).   There are nine criteria relevant to determining whether a special employment relationship exists. They are: (1) Whether the borrowing employer has the right to control the employee's conduct; (2) whether the employee is performing the borrowing employer's work; (3) whether there was an agreement between the original and borrowing employer; (4) whether the employee has acquiesced in the arrangement; (5) whether the borrowing employer had the right to terminate the employee; (6) whether the borrowing employer furnished the tools and place for performance; (7) whether the new employment was to be for a considerable length of time; (8) whether the borrowing employer had the obligation to pay the employee; and (9) whether the original employer terminated its relationship with the employee. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991); Morphew v. Ridge Crane Serv., Inc., 902 P.2d 848 (Colo. App. 1995).   Of the nine criteria, three are decisive: Whether the employee has acquiesced in the arrangement; whether the borrowing employer has the right to control the employee's conduct; and whether the borrowing employer had the right to terminate the employee. Evans v. Webster, 932 P.2d 951 (Colo. App. 1991).   There are additional criteria in the context of leased heavy equipment: (1) Whether the general employer could properly have substituted another servant at any time; (2) whether the duration of the work was short; (3) whether the machine operator had the skill of a specialist; (4) whether the general employer had rented a valuable machine and the employee to operate it; and (5) whether the general employer furnished fuel and maintenance. Morphew v. Ridge Crane Serv., Inc., 902 P.2d 848 (Colo. App. 1995).   A tort suit against a special employer is barred by the workers' compensation act when an employee consents to work for the special employer pursuant to a contract of hire within the workers' compensation act and the employee is an employee of both the general and special employer. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   A separate tort action against a special employer is barred in dual employment situation and the employee's only remedy for an injury sustained while in the course of employment with the borrowing employer is through workers' compensation. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   “Loaned employee” may maintain negligence action. A “loaned employee” and an “employee” under workmen's compensation are not the same, and no provision prohibits or limits a “loaned employee” from maintaining a negligence action against the borrowing employer. Cont'l Sales Corp. v. Stookesberry, 170 Colo. 16 , 459 P.2d 566 (1969).   An employer is not liable for his supervisor's act which has no real connection with his employer's business and is purely personal. Packaging Corp. of Am. v. Roberts, 169 Colo. 316 , 455 P.2d 652 (1969).   Unavailable remedy. An employee cannot rely upon the provisions of §§ 8-2-201 through 8-2-205 as providing an available remedy excepted from abolition by the workmen's compensation act in this section, even though those sections were mistakenly placed within the scope of this section by the 1973 revisor. Ryan v. Centennial Race Track, Inc., 196 Colo. 30 , 580 P.2d 794 (1978). (See Editor's note preceding § 8-2-201 .)   Parent corporation, sued by employee of its wholly-owned subsidiary, is not an “employer” entitled to immunity from tort liability under the workmen's compensation act. Peterson v. Trailways, Inc., 555 F. Supp. 827 (D. Colo. 1983 ); Gaber v. Franchise Servs., Inc., 680 P.2d 1345 (Colo. App. 1984).   “Dual capacity” doctrine. Even if doctrine were applied, a city is not liable to its employee under such doctrine where the city, although the partial manufacturer of the truck that injured the employee, is not principally engaged in the manufacture of such trucks. Shaw v. City of Colo. Springs, 683 P.2d 385 (Colo. App. 1984).   Claimant's tort suit against the employer was barred by the workers' compensation act as a matter of law where claimant had consented to work for the employer pursuant to a contract of hire within the meaning of the act and claimant was an employee of both dual employer and employer. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   Plaintiffs alleged at most a claim for gross negligence, and the exclusivity provisions of the workers' compensation act, therefore, bar their action. Although plaintiffs alleged that employer acted in willful, wanton, and reckless disregard for the health and safety of employee and others, they did not allege that employer intended to cause the injury. Schwindt v. Hershey Food Corp., 81 P.3d 1144 (Colo. App. 2003).   A claim against an employer's workmen's compensation insurer for tortious conduct in connection with the handling of a claim for compensation is not precluded by the workmen's compensation act, where the conduct complained of occurred after the compensable injury, and the damages claimed were not sustained within the scope of the employment relationship. Savio v. Travelers Ins. Co., 678 P.2d 549 (Colo. App. 1983).   Against a tort claim of bad faith, the standard for measuring the conduct of an insurer includes two elements: Unreasonable conduct, and knowledge that the conduct is unreasonable, or a reckless disregard for the fact the conduct is unreasonable. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).   Tort suit against borrowed employee barred where special employer had the exclusive right to control the work of the borrowed employee operator pursuant to the lease agreement, at the time of the accident the borrowed employee operator was performing work for the special employer, the special employer was controlling the work, and the borrowed employee operator acquiesced to this special employment relationship. Morphew v. Ridge Crane Serv., Inc., 902 P.2d 848 (Colo. App. 1995).   Trial court erred in dismissing plaintiff's summary judgment claims alleging violations of the anti-discrimination act and outrageous conduct on grounds that this act provides exclusive remedy against employer where genuine factual controversy existed regarding job-relatedness of sexual harassment claims. Ferris v. Local 26, 867 P.2d 38 (Colo. App. 1993).   Summary judgment was properly entered based on exclusivity provision where state employee who suffered a workplace injury received workers' compensation benefits, and thereafter filed personal injury action against the state agency. Rodriguez v. Bd. of Dirs., 917 P.2d 358 (Colo. App. 1996).   Summary judgment precluded. ALJ erred in granting summary judgment where there existed an unresolved conflict between the medical report issued by the employer's physician advisor and the IME reports obtained by the injured employee. Fera v. Indus. Claim Appeals Office, 169 P.3d 231 (Colo. App. 2007).   Employee suffered workplace injury for which workers' compensation is the exclusive remedy and since employee had received workers' compensation benefits from the state, he was statutorily barred by this section from subjecting the state to further potential liability arising from that injury. Rodriguez v. Bd. of Dirs., 917 P.2d 358 (Colo. App. 1996).   A provision of the High Voltage Power Lines Safety Act (§ 9-2.5-101 et seq.) providing that a person or entity which violates the act “may be liable for all damages” does not permit an employee covered by workers' compensation to seek additional remedies against the covered employer under the act. Rodriguez v. Nurseries, Inc., 815 P.2d 1006 (Colo. App. 1991).   The rights of the spouse of an employee under the workers' compensation act are strictly derivative from those of the employee and thus a wife may not maintain a tort action against her husband's employer for loss of consortium. Rodriguez v. Nurseries, Inc., 815 P.2d 1006 (Colo. App. 1991).   Employee's claim for wrongful death of her child was not derivative of an injury to the employee and could be brought against the employer. Where employee's child was born prematurely and died because the employer coerced the employee into working too many hours during her pregnancy, the claim was derived from an injury to a third party, the employee's child. Keefe v. Pizza Hut of Am., Inc., 868 P.2d 1092 (Colo. App. 1993), aff'd, 900 P.2d 97 (Colo. 1995).   Wrongful death action brought by employee's nondependent parents, based on the death of the employee which 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).   Co-employees are immune from common law actions brought by an officer who has rejected coverage under the Act. Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo. 1995).   If the employer has entered into an express indemnity agreement with a third party, the employer waives immunity under the workers' compensation act and may be required to indemnify the third party for damages paid to the injured worker by the third party. Pub. Serv. Co. v. United Cable Television of Jeffco, Inc., 816 P.2d 289 (Colo. App. 1991).   Courts will enforce express indemnity agreements against an employer who would otherwise be immune under the workers' compensation act based on the employer's freedom of contract rights and the employer's right to waive statutory protections. Pub. Serv. Co. v. United Cable Television of Jeffco, Inc., 816 P.2d 289 (Colo. App. 1991).   Claims for medical monitoring fall under the “personal injury” umbrella for purposes of the workers' compensation act. Employee's claims for exposure to unsafe levels of radioactive and other hazardous substances were barred by exclusivity provisions of this Act. Bldg. and Const. Dept. v. Rockwell Intern., 7 F.3d 1487 (10th Cir. 1993).   A motion to dismiss based on the exclusivity provisions of the workers' compensation act does not go to the subject matter jurisdiction of the court, therefore, an evidentiary hearing is neither required nor appropriate. The trial court did not err in ruling on employer's motion without such a hearing. Schwindt v. Hershey Food Corp., 81 P.3d 1144 (Colo. App. 2003).   Engaging in an act that violates the federal pay statutes does not require the withdrawal of the immunity provided by this section. Bailey v. C.P. Const., Inc., 837 P.2d 277 (Colo. App. 1992).   Applied in Ogden v. McChesney, 41 Colo. App. 191, 584 P.2d 636 (1978); Ellis v. Rocky Mt. Empire Sports, Inc., 43 Colo. App. 166, 602 P.2d 895 (1979); Stewart v. United States, 716 F.2d 755 (10th Cir. 1982); Campbell v. Black Mtn. Spruce, Inc., 677 P.2d 379 (Colo. App. 1983); Savio v. Travelers Ins. Co., 678 P.2d 549 (Colo. App. 1983); Williams v. White Mtn. Const. Co., 749 P.2d 423 (Colo. 1988).