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Defense Digest

A Double Take: Workers’ Compensation Liens Render UIM Non-Duplication Clauses Unenforceable

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

by Joshua D. Scheets

Key Points:

  • Delaware Superior Court permits injured plaintiffs-employees to board medical bills and lost wages already paid by the workers’ compensation carrier in subsequent UIM claim related to the same incident, despite a non-duplication clause in UIM policy. 
  • In John Henry, et al. v. The Cincinnati Ins. Co., C.A. No. N18C-03-092 (December 23, 2024) (Brennan, J.), the court resolved seeming conflict of public policies between those underlying subrogation rights under the Workers’ Compensation Act and those behind the Uninsured Motorist Statute.

In a departure from historical precedent, the Delaware Superior Court permits injured plaintiffs-employees to board medical bills and lost wages that were already paid by the workers’ compensation carrier in a subsequent underinsured motorist (UIM) claim related to the same incident, despite the inclusion of a non-duplication clause in the UIM policy. John Henry, et al. v. The Cincinnati Ins. Co., C.A. No. N18C-03-092 (December 23, 2024) (Brennan, J.) (Henry III). In so doing, the court resolves the seeming conflict of public policies between those underlying subrogation rights under the Workers’ Compensation Act (the Act) and those behind the Uninsured Motorist Statute. 

Even though it may appear there is a duplicate recovery by the plaintiff-employee recovering these damages in a workers’ compensation claim and then boarding them in a subsequent UIM claim, functionally there is no duplication of damages since the recovery in the UIM context is now subject to a statutory right to subrogation of those recovered amounts by the workers’ compensation carrier/employer. The new paradigm created is best described as one in which the injured plaintiff-employee is permitted access to an advanced payment by the tortfeasor, but through the workers’ compensation carrier, with the ability to put on a full damages case against the employer’s UIM carrier where the third-party tortfeasor’s coverage in insufficient. Under the court’s rationale, by permitting this new category of damages in the UIM claim, Delaware law puts the workers’ compensation carrier or the employer as whole as reasonably can be accomplished while still fully compensating the injured plaintiff-employee.

The Henry III case involves an employee who was seriously injured in an automobile crash and then collected significant workers’ compensation benefits. The plaintiff-employee then filed third-party claims against the tortfeasors and collected the relatively modest policy limits and reimbursed the workers’ compensation carrier with a portion of those proceeds. The employee next filed a claim with his employer’s UIM carrier. The UIM carrier attempted to have the UIM claim dismissed pursuant to the workers’ compensation exclusivity provision. The Delaware Supreme Court held that the UIM carrier itself was not an employer under the Act and, instead, stepped into the shoes of the tortfeasor, thus, eliminating the exclusivity bar under the Act. Henry v. Cincinnati Ins. Co. & Fritz v. Cincinnati Ins. Co., 212 A.3d 285 (Del. 2019) (consolidated appeal) (Henry I). 

In the wake of Henry I, and following a robust procedural history, the workers’ compensation carrier eventually filed an action seeking declaratory judgment, which was dismissed and appealed, and then ultimately led to the Supreme Court’s holding, for the first time, that the Act “expressly allows the employer and its workers’ compensation carrier to assert a subrogation lien against benefits paid to the employee under the employer’s uninsured motorist policy.” Horizon Servs., Inc. v. Henry, 304 A.3d 552, 555 (Del. 2023) (Henry II). The Supreme Court then remanded the case to the trial court to develop the facts and determine the impact of the UIM non-duplication clauses. 

Back to Henry III, the Superior Court was faced with reconciling the statutory right of a workers’ compensation carrier/employer to subrogation with the contractual language of the non-duplication clause in a UIM policy. The controversy implicated competing public policies between the right to subrogation under the Act and the policy behind mandating UIM coverage through. Faced with resolving this question, Judge Brennan reasoned, given the statutory right to subrogation announced in Henry II combined with the fact that the workers’ compensation carrier was not a party to the contract with the non-duplication clause, the non-duplication clause could not be upheld. Henry III, at 12. The court noted that the way to resolve this supposed clash of public policies was to “harmonize the statutes” in a way to give both public policies meaning and effect. The simplest way to do this, the court reasoned, was to allow the plaintiff “to bring an action for all damages with the workers’ compensation lien against any damage award.” Id. at 15. In this context, there is no double recovery or duplication of indemnity since the monies paid in the UIM claim were subject to the subrogation rights of the workers’ compensation carrier/employer. 

As of this writing, Henry III is the law of Delaware and necessitates a modification of the handling of UIM claims in this and similar situations. At the very least, it requires a careful review of release language in order to ensure a resolution of all claims and liens moving forward. 

*Joshua works in our Wilmington, Delaware, office and is a member of our Casualty Department. 

Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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