Slip and fall does not arise from employment.

Byline: David Ziemer

The Wisconsin Court of Appeals held on Sept. 3 that an employee exclusion in a general liability insurance policy does not exclude coverage for an employee who fell on the premises before starting work.

Julie Aasen-Robles was an employee of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians (LCO) and worked at LCO's casino in the housekeeping department. On Dec. 31, 1998, Aasen-Robles slipped and fell on an icy patch of sidewalk while walking toward an employee entrance on LCO's premises.

When she fell, Aasen-Robles was on her way to work and had not yet punched in or commenced work. Her injuries prevented her from returning to her job.

As a sovereign Indian tribe, LCO is exempt from worker's compensation laws. However, LCO self-insured its employees to provide coverage for all work-related injuries or illnesses through Corporate Benefit Services of America (CBSA). LCO also had a general liability policy with St. Paul Fire & Marine Insurance Company. The policy had a standard provision excluding coverage for employee injuries.

While CSBA initially concluded her therapy would be paid by its policy, the administrator later told Aasen-Robles her injuries were not work related because she was not "in the door" or "on the clock" when she fell.

Aasen-Robles eventually sued St. Paul. Sawyer County Circuit Court Judge Norman L. Yackel granted summary judgment in favor of St. Paul, and Aasen-Robles appealed. The court of appeals reversed in a decision by Judge Thomas Cane.

The policy exclusion states, "We won't cover bodily injury to an employee of the protected person arising out of and in the course of his or her ... employment."

The court agreed with Aasen-Robles that the plain language of the exclusion does not exclude all employees from coverage all the time, but only bars coverage for employee injuries that arise out of and occur in the course of employment. The court further concluded that Aasen-Robles was not acting in the course of her employment when she was injured.

The court acknowledged that, pursuant to Makal v. Industrial Comm'n, 262 Wis. 215, 54 N.W.2d 905 (1952), and sec. 102.03(1)(c)2, for purposes of the worker's compensation laws, an employee is in the course of employment when going to and from their employment while on the employer's premises.

Nevertheless, the court concluded that Makal and the statute were irrelevant, because the tribe is not subject to worker's compensation law.

The court noted that...