In many instances, the motor vehicle accident victim has both a third party claim against the negligent driver as well as a worker’s compensation claim if the accident occurred while the victim was working. In such instances, when there is a claim made for uninsured (“UM”) or underinsured (“UIM”) motorist benefits, it is imperative that the victim’s lawyer be aware of Virginia law regarding the interaction of UM/UIM coverage and worker’s compensation benefits.

If the UM/UIM coverage is provided by an insurance policy carried by and at the expense of the victim’s employer, then the employer has a right of subrogation against any UM/UIM benefits that the victim recovers. Va. Code Section 65.2-309.1. However, this right of subrogation does not extend to UM/UIM benefits recovered by the victim from his or her own personal motor vehicle policy. Va. Code Section 38.2-2206.

Virginia’s UM statute, Va. Code Section 38.2-2206, sets forth the priority of UM/UIM coverage available under multiple policies. Generally, this priority is: 1. the policy covering the motor vehicle occupied by the victim; 2. the policy covering a motor vehicle not involved in the accident under which the victim is a named insured; and 3. the policy covering a motor vehicle not involved in the accident under which the victim is an insured other than a named insured. Consequently, in a typical situation, where the victim is injured while driving an employer furnished vehicle, the victim’s own family automobile policy would provide the second layer of UM/UIM coverage. Any UM or UIM recovery the victim obtained from such family automobile policy would not have to be paid back to the worker’s compensation carrier.