1. The common issue presented by these two
consolidated appeals is whether a tortfeasor-motorist is underinsured
within the meaning of 23 V.S.A. § 941(f) where the tortfeasor's liability
policy limits are greater than the injured party's underinsurance limits,
but are insufficient to satisfy the injured party's damages because of
payments made to other victims of the same accident. The Bonanno case also
asks us to decide whether a self-insured employer must provide
underinsurance motorists (UIM) benefits to its employees, and if so,
whether the workers' compensation exclusivity statute bars payment of those
benefits to the injured worker.

2. Regarding the first issue, we conclude that the plain language
of 23 V.S.A. § 941(f) entitles an injured party to UIM coverage only when
the liability limits of the tortfeasor's insurance policy are less than the
injured party's uninsured/underinsured (UM/UIM) limits. In the Bonanno
case, we conclude that self insurers must provide UIM coverage, and that 21
V.S.A. § 622, the exclusivity provision of Vermont's worker's compensation
statute, does not bar the employee from seeking UIM benefits from his
self-insured employer.

I. Facts and Procedural History

A. The Colwell Case

3. On December 18, 1995, plaintiff Natalie Wetmore Colwell was
injured in an automobile accident involving several other vehicles, and
incurred damages in excess of $50,000. At the time of the accident,
Colwell was covered under an automobile insurance policy defendant Allstate
Insurance Company issued. The policy provided $50,000 in single-limit
UM/UIM coverage. The driver who allegedly caused the accident also had a
single-limit liability policy with $50,000 in coverage, but that coverage
was not enough to pay all claims arising out of the multiple vehicle
accident. Consequently, Colwell settled her claim against the tortfeasor
for $34,473 and looked to the UIM coverage in her Allstate policy for
further compensation. Allstate denied her claim, asserting that because
the tortfeasor's liability policy limit was not less than Colwell's UM/UIM
limit, the tortfeasor was not underinsured within the meaning of her
Allstate policy or § 941(f). In response, Colwell sought a declaratory
judgment that she is entitled to UIM coverage. By joint request of the
parties, the superior court certified to this Court pursuant to V.R.A.P.
5(a) the question of whether Colwell was entitled to UIM coverage under the
circumstances of this case.

B. The Bonanno Case

4. On December 22, 1995, plaintiff Nicholas Bonanno was operating
his employer's vehicle during a work-related activity when he was injured
in an automobile accident. His employer, defendant Bell Atlantic
Communications, Inc., was self insured. The driver of the vehicle who
caused the accident was covered by a $500,000 liability policy. Bonanno
collected workers' compensation benefits from Bell Atlantic. He also
obtained a recovery under the tortfeasor's policy, but only in the amount
of $62,500 because of payments made to another person rendered quadriplegic
by the accident.

5. Claiming that he had not been fully compensated for his
injuries, Bonanno sought UIM coverage from Bell Atlantic and from defendant
American Protection Insurance Co. (API), with whom he had a personal
automobile insurance policy providing $300,000 in UM/UIM coverage. Both
Bell Atlantic and API denied coverage, and Bonanno filed the present action
for declaratory relief. The superior court granted summary judgment in
favor of Bell Atlantic and API, ruling that Bonanno's workers' compensation
recovery was his exclusive remedy from his employer, and that UIM coverage
was not available under his API policy because the tortfeasor was not
underinsured as defined by § 941(f).

II. UIM Coverage

6. We first address the issue common to both cases: whether §
941(f) defines "underinsured" by comparing policy limits only without any
consideration of the funds actually available from the tortfeasor's policy
to pay all claims arising out of an accident. Because appellants in both
cases concede that the relevant provisions of their individual policies are
consistent with the terms of the governing statute, 23 V.S.A. § 941(f), we
examine the statute directly to resolve the issue.

7. In construing a statutory provision, our paramount goal is to
discern and implement the intent of the Legislature. Baker v. State, 170
Vt. 194, 198, 744 A.2d 864, 868 (1999); State v. O'Neill, 165 Vt. 270, 275,
682 A.2d 943, 946 (1996). When the language of a statute is plain and
unambiguous, we presume that the Legislature intended the meaning expressed
by that language. Baker, 170 Vt. at 199, 744 A.2d at 868. In such
situations, our duty is to enforce the statute according to its terms
without resort to statutory construction. Tarrant v. Dep't of Taxes, 169
Vt. 189, 197, 733 A.2d 733, 739 (1999); Sanders v. St. Paul Mercury Ins.
Co., 148 Vt. 496, 504, 536 A.2d 914, 918 (1987). We have such a situation
here.

8. Section 941(f) defines an underinsured motor vehicle as
follows:

For purposes of this subchapter, a motor vehicle is underinsured
to the extent that its personal injury limits of liability at the
time of the accident are less than the limits of uninsured
motorists coverage applicable to any injured party legally
entitled to recover damages under said uninsured motorist
coverage.

We have repeatedly interpreted the statute as requiring a comparison
of policy limits as they exist at the time of the accident in accordance
with § 941(f)'s unambiguous plain language. See, e.g., Merkel v.
Nationwide Ins. Co., 166 Vt. 311, 315, 693 A.2d 706, 708 (1997); Webb v.
United States Fid. & Guar. Co., 158 Vt. 137, 141, 605 A.2d 1344, 1347
(1992); Stanhope v. Lumbermen's Mut. Ins. Co., 155 Vt. 645, 646, 582 A.2d
150, 150 (1990) (mem.). The statutory provision makes no mention of
comparing UM/UIM coverage to the amounts actually available or paid to the
injured insured(s) at some later point under the tortfeasor's policy.

9. Appellants argue nevertheless that we must ignore the literal
terms of § 941(f) because the terms create anomalous and unfair results
that are contrary to the statute's objectives. See In re Jewell, 169 Vt.
604, 606, 737 A.2d 897, 900 (1999) (mem.) (statute should not be construed
in way that is at odds with its underlying purpose); Braun v. Bd. of Dental
Examiners, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997) (Legislature is
presumed not to have intended interpretation that would lead to absurd or
irrational results). According to appellants, adhering to the plain
language of the statute means they would have been better off if their
tortfeasors had no insurance, an anomalous result they assert the
Legislature intended to resolve by enacting the UIM provision in 1980. See
Merkel, 166 Vt. at 314, 693 A.2d at 708; Monteith v. Jefferson Ins. Co. of
N.Y., 159 Vt. 379, 386, 618 A.2d 488, 492 (1992). We find this argument
appealing, but ultimately unpersuasive for the reasons that follow.

10. The legislative history of § 941(f) shows that while the
Legislature may have chosen the current language of the statute as the way
to fix the anomaly that an injured motorist was better off if the
tortfeasor was uninsured than if he carried some insurance, it did not
appreciate how the statute would operate in accidents involving multiple
victims. When introduced to the Vermont House of Representatives in 1979,
UIM coverage was a new concept. As a result, much of the testimony in the
early committee hearings on the matter was explanatory in nature and filled
with confusion. Through the confusion emerged a consensus that the
underinsurance provision should protect individuals involved in accidents
with "marginally insured" motorists, just as the financial responsibility
law protects people involved in accidents with uninsured motorists.
Statement of Stewart Ledbetter on H.411 to Senate Highways and Traffic
Committee, at 21 (Mar. 21, 1979); Testimony of Linda Reis on H.411 to
Senate Finance Committee, at 11-12 (Mar. 25, 1980). Unfortunately, very
few details about how the statute would function beyond that broad policy
goal, including how the statute might operate in multiple-victim accidents,
arose from the debate. The Legislature finally settled on the present
language, which offers some protection against accidents with marginally
insured motorists. But in some multiple-victim accidents, as Colwell and
Bonanno's cases show, more compensation is available to satisfy an injured
motorist's damages when the tortfeasor has no insurance at all. Section
941(f) therefore does not fully address the discrepancy between uninsured
motorists and marginally insured motorists the Legislature sought to fix by
enacting the statute.

11. Although the statute does not solve the entire problem of
coverage against underinsured motorists, § 941(f) does not fail in its
essential purpose because it offers some protection against marginally
insured motorists. Legislators apparently did not contemplate the
statute's operation in multiple-victim accidents because the issue never
came up during the relevant legislative hearings. Thus, we cannot be
certain what the Legislature would have done if it had been aware of the
multiple-victim problem, and we must therefore enforce the statute's plain
language.

12. Nor does interpreting the statute according to its plain
language reach the absurd result that appellants suggest. Indeed, some
states have made the very same language choice that Vermont did, but with
awareness of what the effect would be in some multiple-victim scenarios.
As in Vermont, mandated UIM coverage became the law in states across the
country because of the perceived inadequacies and inequities of UM
coverage. The states faced complex policy decisions in determining the
extent to which they wanted to require insurers to provide UIM coverage.
Two general views of UIM coverage developed. The first, often called
"excess coverage," deems a tortfeasor underinsured when the injured party's
damages exceed the tortfeasor's liability coverage. See, e.g., Kothrade v.
Am. Family Mut. Ins. Co., 462 N.W.2d 413, 415 (Minn. Ct. App.1990)
(construing Minn. Stat. § 65B.43, subd.17, which defines underinsured motor
vehicle as having liability policy that "is less than the amount needed to
compensate the insured for actual damages"); see 3 A. Widess, Uninsured and
Underinsured Motorist Coverage § 35.2, at 206-210 (rev. 2d ed. 2001)
(citing statutes in which UIM coverage is determined by comparing limits of
tortfeasor's liability insurance to claimant's damages). States requiring
insurers to provide this broader type of coverage intended to indemnify
injured insureds for all of their damages not compensated by the
tortfeasor's coverage. See State Farm Mut. Auto. Ins. v. Messinger, 283
Cal. Rptr. 493, 500 (Cal. Ct. App. 1991).

13. A variant of "excess coverage" statutes requires insurers to
provide UIM coverage to the extent that the amount actually available to
the injured party from the tortfeasor's policy was less than the UIM
coverage limits stated in the injured party's policy. See, e.g., Florestal
v. Gov't Employees Ins. Co., 673 A.2d 474, 478-79 (Conn. 1996) (comparing
Conn. Gen. Stat. § 38a-336 with § 38a-336a); see also Colonial Ins. Co. v.
Tumbleson, 873 F. Supp. 310, 313 (D. Alaska 1995) (construing Alaska Stat.
§ 28.20.445(h)); Leetz v. Amica Mut. Ins. Co., 839 P.2d 511, 513 (Colo. Ct.
App. 1992) (construing Colo. Rev. Stat. § 10-4-609(4)); Motorists Mut. Ins.
Co. v. Andrews, 604 N.E.2d 142, 144-46 (Ohio 1992) (construing Ohio Rev.
Code Ann. § 3937.18(A)(2)).

14. On the other hand, many states, including Vermont, required
insurers to provide more narrow "gap coverage" intended only to place the
insured in the same position as if, at the time of the accident, the
tortfeasor had liability coverage equal to the insured's UIM coverage.
Messinger, 283 Cal. Rptr. at 501; see, e.g., Allstate Ins. Co. v.
Gillaspie, 668 A.2d 757, 759 (Del. Super. Ct. 1995) (construing Del. Code
Ann. tit. 18, § 3902(b)(2), which defines underinsured motor vehicle as
having liability coverage less than claimant's UM/UIM coverage); Alguila v.
Safety Ins. Co., 624 N.E.2d 79, 81 (Mass. 1993) (construing Mass. Gen. Laws
ch. 175, § 113L(2), which defines underinsured motor vehicle as having
liability coverage less than insured's UIM coverage); see 3 A. Widess,
supra, § 35.2, at 193-200 (contrasting statutes, including § 941(f), that
compare tortfeasor's liability policy limit with insured's UIM policy limit
to statutes that compare insured's UIM policy limit with amount of
tortfeasor's liability insurance actually available to injured insured).
This type of scheme requires UIM coverage only if the tortfeasor's stated
liability limits are less than the insured's UIM coverage at the time of
the accident. Messinger, 283 Cal. Rptr. at 501.

15. While we recognize that § 941(f) does not fully address the
problem of UIM benefits in multiple-victim accidents, in view of the number
of choices available to solve the problem of underinsured motorists
generally, this is an inappropriate case for the Court to fashion the
particular remedy Colwell and Bonanno seek, even if we agreed that one was
warranted. Whether § 941(f)'s language should reflect the "excess
coverage" policy other states have adopted, as Colwell and Bonanno
essentially argue, or remain a "gap coverage" provision, is not a decision
for this Court to make. The Legislature must determine whether a problem
in this area exists, and if so, what is the best way to solve it.

16. Appellants also claim that construing § 941(f) in a manner
that prevents them from recovering the difference between the money
actually available from the tortfeasor and the stated amount of their UIM
coverage denies them the benefits of the coverage for which they paid. We
do not agree. Appellants concede that their insurance policies are
consistent with the mandates of the financial responsibility law. See
Sanders, 148 Vt. at 507-08, 536 A.2d at 921 (insurance policy meets
consumer's expectations if policy complies with statutory requirements in
every respect). Moreover, the fact that they paid premiums for a certain
level of UIM coverage does not mean that they failed to obtain the benefit
of their bargain simply because they were not compensated to the level of
the UIM coverage stated in their policies. "[T]he benefit that the
policyholder receives from UM/UIM coverage is protection against the
probability of deficient recovery from the tortfeasor, not guaranteed
receipt of payment equal to the UM/UIM coverage." The Travelers Cos. v.
Liberty Mut. Ins. Co., 164 Vt. 368, 375, 670 A.2d 827, 831 (1995) (emphasis
added).

17. In sum, we hold that the plain language of § 941(f) controls
the definition of "underinsured." We therefore answer the certified
question in Colwell's case in the negative. In Bonanno's case, we affirm
the superior court's judgment denying Bonanno's claim against his insurer
API because his UIM policy limits exceed the liability limits of the
tortfeasor's policy.

III. Workers' Compensation, Self Insurance and UIM

18. Bonanno's case has a second issue, however. Bonanno's injury
occurred during the course of his employment with Bell Atlantic. When
Bonanno sought UIM payments from Bell Atlantic as a self insurer, the
company denied any liability for UIM benefits, first claiming that its UIM
coverage extended only to the statutory amounts in effect at the time of
the accident ($20,000 for one person and $40,000 for two or more people
injured or killed) and therefore Bonanno was not underinsured. The company
later claimed that its self-insurance plan in Vermont did not include UIM
benefits because as a self insurer it was not required to offer such
benefits under the law. In any event, Bell Atlantic claimed the
exclusivity provision of Vermont's Workers' Compensation Act, 21 V.S.A. §
622, barred any further recovery for Bonanno from the company.

19. Three factors ground our decision that Bonanno's claim
against Bell Atlantic is not precluded by the exclusivity of the Workers'
Compensation Act. First, the Legislature intended self insurance to
operate on an equal footing with traditional liability insurance. Second,
requiring Bell Atlantic to provide UIM benefits to injured workers is not
inconsistent with the purpose of the Workers' Compensation Act and our
precedents interpreting it. Third, the Legislature's intent to create
universal UIM coverage should not be defeated by an employer's choice to
self insure. Accordingly, we hold that self-insured employers have the
same obligation as commercially insured employers to furnish UIM benefits
to workers injured on the job by underinsured motorists.

A. Self Insurance and UIM

20. We begin by addressing whether § 941(f)'s mandate for UIM
coverage extends to self insurers. Because § 941(f) (UIM) and 23 V.S.A. §
801(c) (self insurance) are parts of Vermont's motor vehicle financial
responsibility system, they must be considered together to discern the
Legislature's intent regarding mandatory UIM coverage. Bd. of Trustees of
Kellogg-Hubbard Library, Inc. v. Labor Relations Bd., 162 Vt. 571, 574, 649
A.2d 784, 786 (1994) (statutes that are closely related because they deal
with the same subject matter or have a similar purpose must be construed
with reference to each other.)

21. Vermont's financial responsibility law requires all drivers
and owners of automobiles in the state to maintain some form of insurance
for liability claims arising from motor vehicle accidents. 23 V.S.A. §
800(a); see also id. § 809 (waiver of proof of financial responsibility
"shall not be construed to relieve an operator of his or her responsibility
to comply with the mandatory insurance requirement set forth in 23 V.S.A. §
800"). The statute prescribes either an insurance policy, surety bond, or
"in lieu thereof," evidence of self insurance. 23 V.S.A. § 800(a).
Section 801 authorizes three methods to prove compliance with § 800(a)'s
mandatory insurance requirement: (1) a policy of insurance, (2) a surety
bond, or (3) a certificate of self insurance. Id. § 801(a), (c). Self
insurance, authorized by § 801(c), did not exist at the time of the
original provision's adoption in 1927. See 1927, No. 81, § 2. The
Legislature authorized self insurance in a 1955 amendment to the statute.
See 1955, No. 124, § 1. Except as to amount, the language of § 801(c)
remains identical to the 1955 amendment, which allows self insurance "in
lieu of " an insurance policy or bond. 23 V.S.A. § 801(c). "In lieu of "
means "instead." See Webster's New International Dictionary 1427 (2d
unabr. ed. 1961). "Instead" means "equivalent" or "as a substitute." See
id. at 1287. Thus, the Legislature's amendment in 1955 was intended to
equate self insurance with a policy of insurance or surety bond. See also
23 V.S.A. § 800(a) (allowing self insurance "in lieu of " mandatory
liability policy or surety bond).

22. Bell Atlantic argues that the language of § 801(c) limits a
self insurer to liability coverage only and does not contemplate UIM
coverage. It is true that a self insurer's responsibility under the plain
language of § 801(c) is to obtain a certificate of self insurance
protecting the driver of the self-insured vehicle against claims where the
driver is the tortfeasor. See Champlain Cas. Co. v. Agency Rent-A-Car, 168
Vt. 91, 96-97, 716 A.2d 810, 814 (1998) (§ 801(c) "provides a relationship
between the self insurer and the tortfeasor and describes it as insurance
against the tortfeasor's loss"). The pertinent question is not what §
801(c) says alone, however, but whether the Legislature intended § 941(f)
to require those who choose to self insure to provide UIM coverage. The
answer, we conclude, is unequivocally yes.

23. Twelve years after the Legislature adopted self insurance as
the third method of proving financial responsibility, it addressed the
problem of uninsured motorists by enacting what is now § 941(f). 1967, No.
374 (Adj. Sess.), § 1. Like the present version, Act No. 374 provided that
"[n]o policy insuring against liability arising out" of the use, ownership,
or maintenance of an automobile may be issued or delivered in Vermont
without an uninsured motorist provision. Id. As explained above, the
Legislature added the underinsurance provision in 1980. Bell Atlantic asks
this Court to construe the statute to exclude self insurers because §
941(f) refers to a "policy" of insurance and self insurers do not issue
"policies." To conclude Bell Atlantic's interpretation of § 941(f) is the
correct one, we would have to agree that the Legislature intended § 941(f)
to exclude from its protection all motorists insured through self-insurance
plans or surety bonds. That construction of § 941(f) is incompatible with
the Legislature's intent to equate self insurance with a commercial
insurance policy. Cf. Wright v. Smallwood, 419 S.E.2d 219, 220-21 (S.C.
1992) (legislative mandate that all automobile insurance "policies" provide
uninsurance coverage requires self insurers to provide uninsurance coverage
because self insurance is a substitute for an insurance policy). Moreover,
it frustrates the broad remedial purpose underlying the UM/UIM requirement.
See Monteith, 159 Vt. at 382, 618 A.2d at 490. Self insurance should not
be a way to avoid claims of those persons the Legislature intended to
protect through the motor vehicle financial responsibility laws. Nat'l
Farmers Union v. Bang, 516 N.W.2d 313, 317 (S.D. 1994). Bell Atlantic has
not offered any rationale for making the distinction between commercial
insurers and self insurers that it suggests here, and we cannot discern one
from the statutory language. Consequently, we conclude that § 941(f)
directs mandatory UM/UIM coverage in all forms of motor vehicle insurance,
including self insurance, so that all motorists have minimum protection
from financially irresponsible drivers.

24. Interpreting § 941(f) to require UIM coverage for all insured
motor vehicles regardless of the form of insurance is consistent with
decisions in other states. (FN1) Construing a statute equating self
insurance with a commercial insurance policy, the South Dakota Supreme
Court held that self insurers must provide UIM coverage, which the South
Dakota Legislature required in all motor vehicle insurance policies. Id.
In a decision relating to UM coverage, the New Jersey Supreme Court
determined that the legislative requirement to carry uninsured motorist
coverage applied to self insurers. Christy v. City of Newark, 510 A.2d
22, 27 (N.J. 1986). It explained: "So strong is the public policy favoring
UM coverage that in the absence of an unmistakable legislative declaration
to the contrary, we are certain that the foregoing principle applies to any
legislatively-authorized self-insurance fund. . . ." Id. at 27-28. In
Hartford Ins. Co. v. Hertz Corp., 572 N.E.2d 1 (Mass. 1991), the
Massachusetts Supreme Judicial Court held self insurers must provide UIM
coverage. It reasoned that the broad remedial purpose of UIM "would not be
served if an automobile owner could avoid maintaining underinsured motorist
coverage by becoming self insured under a motor vehicle liability bond."
(FN2) 572 N.E.2d at 5; see also Heavens v. Laclede Gas Co., 755 S.W.2d
331, 332-33 (Mo. Ct. App. 1988) (self insurers must provide UM; holding
otherwise would allow self insurers to circumvent statutory mandate for UM
coverage). We therefore hold that self insurers must provide UIM coverage
like other insurers.

B. UIM and Workers' Compensation Exclusivity

25. We now address Bell Atlantic's argument that the exclusivity
provision of Vermont's Workers' Compensation Act, 21 V.S.A. § 622, bars any
recovery for UIM benefits from a self-insured employer. The issue central
to this question is whether Bell Atlantic can be considered a "third party"
subject to UIM liability to Bonanno under § 624(a) of the Act. Bell
Atlantic asserts that it is not a "third party" because it is Bonanno's
employer. In making this argument, Bell Atlantic ignores this Court's
precedent looking favorably on the so-called "dual persona" or "dual
capacity" doctrine. Under that doctrine, an employer immune from suit by §
622 may be subject to a third-party claim in accordance with § 624(a) if
the employer's liability to the victim arises from actions taken in a
non-employer capacity.

26. In Derosia v. Duro Metal Prods. Co., 147 Vt. 410, 413, 519
A.2d 601, 604 (1986), we held that a workers' compensation insurer, which
is considered the "employer" under the Workers' Compensation Act, 21 V.S.A.
§ 601(3), is a third party subject to suit if the insurer "undertakes to
provide, rather than pay for, benefits and services." 147 Vt. at 413, 519
A.2d at 604. Similarly, we have found no bar to suits against corporate
officers who otherwise enjoy employer immunity under § 622 where the
officer's negligence arose from a breach of a personal duty rather than a
duty owed to the worker by the employer. See, e.g., Gerrish v. Savard, 169
Vt. 468, 471-72, 739 A.2d 1195, 1198 (1999) (third-party exception to
exclusivity may in certain circumstances apply to an employer if employer
acts in capacity of co-employee in negligently causing accident); Garrity
v. Manning, 164 Vt. 507, 511, 671 A.2d 808, 811 (1996) (adopting the
Wisconsin rule on dual capacity, which requires examination of the duty
breached when assessing whether worker's suit for damages is permissible);
see also Dunham v. Chase, 165 Vt. 543, 543, 674 A.2d 1279, 1280 (1996)
(mem.) (corporate officer may be subject to co-employee liability for those
negligent acts that breach personal duty only rather than nondelegable
corporate duty).

27. Our decision in Libercent v. Aldrich, 149 Vt. 76, 539 A.2d
981 (1987), further supports Bonanno's claim against Bell Atlantic. In
deciding that § 624(a) allowed a third-party claim by a State employee
against a coworker where the State would defend and indemnify the coworker,
we looked at the source of the State's obligation to defend its employees
in the workplace negligence suit and determined that it arose independently
of its obligations under the Workers' Compensation Act. 149 Vt. at 82-83,
539 A.2d at 985. We explained that the State "does not assume direct
liability for the acts of an employee; rather its status is analogous to
that of an insurer." Id. at 82, 539 A.2d at 985. The same analogy applies
in this case, even if the employer is a named defendant. Bell Atlantic's
liability for UIM is not direct; rather, Bell Atlantic's liability arises
from the negligence of the third-party underinsured driver who caused
Bonanno's injuries and the statutory mandate to provide UIM coverage. Bell
Atlantic's role in this case, like that of the State in Libercent, is one
of an insurer. Like the co-employee tortfeasor in Libercent, the
tortfeasor who injured Bonanno remains primarily liable, although the
damages Bonanno seeks to recover will come in whole or in part from the
employer as UIM insurer. Cf. William v. City of Newport, 397 S.E.2d 813,
816 (Va. 1990) (employer's liability for UIM payments to injured worker
flows from judgment obtained against third-party tortfeasor and statute
requiring self insurers to provide UIM coverage; the workers' compensation
exclusivity provision therefore does not apply); see also Nat'l Farmers
Union, 516 N.W.2d at 318 (if employee seeks UIM from employer for injury
employer caused, claim is barred by workers' compensation exclusivity; but
claim is not barred where third party causes injury).

28. Thus, under our precedents, we examine the capacity in which
the party protected by § 622 was engaged to determine the injured worker's
right to pursue additional compensation under § 624(a). Section 622
immunity offers no protection to an insurer or corporate officer who
becomes liable to an injured employee for actions taken outside of the
employer/employee relationship. The same rule should apply here to Bell
Atlantic. Bell Atlantic has chosen a dual role for itself. It is an
employer. The company is also an insurer bound to provide UIM coverage on
its motor vehicles in accordance with § 941(f). Invoking the dual capacity
doctrine here recognizes Bell Atlantic's different and distinct duties
toward Bonanno: its duty as an employer to provide workers' compensation,
and its duty as an insurer and automobile owner to maintain UIM coverage on
its vehicles.

29. Applying the dual capacity doctrine in this case also makes
sense because it furthers the Legislature's intent regarding UIM and self
insurance and does no violence to the concepts underlying worker's
compensation. The purpose of the Workers' Compensation Act is to
eliminate the delays and costs involved in employee/employer litigation
over workplace injuries under the common law. See Sienkiewycz v. Dressell,
151 Vt. 421, 423, 561 A.2d 415, 416 (1989) (workers' compensation law was
passed for benefit of employees who were victims of industrial injury to
avoid cost, delays, and complications of recovery under old common law,
with its rules relating to such doctrines as contributory negligence and
fellow servant negligence). The Act provides swift compensation to the
injured worker in exchange for employer immunity from suit for the worker's
injury. Id. Underlying § 941(f) is the legislative desire to protect the
insured public from financially irresponsible drivers, Monteith, 159 Vt.
at 381, 618 A.2d at 489-90, by requiring all owners or operators of motor
vehicles to obtain UIM coverage regardless of the form of insurance.
Employer responsibility for an employee's workplace injury is not at issue
when the employee seeks UIM benefits from any UIM provider. When the
employee seeks UIM payments from the employer, the employee is enforcing
the employer's statutory obligation to provide UIM coverage irrespective of
the method of insurance. The facial conflict between mandatory UIM
coverage, the exclusiveness of the workers' compensation remedy, and the
third-party exception to exclusivity can be resolved by harmonizing the
statutes to give effect to the legislative intent underlying each. See Vt.
Agency of Natural Res. v. Holland, 159 Vt. 21, 23, 613 A.2d 712, 713 (1992)
("Where two statutory provisions conflict, interpretations that harmonize
and give effect to both are favored."). Bell Atlantic's position, on the
other hand, frustrates the Legislature's intent to make UIM coverage
universal, even for workers injured by underinsured motorists, solely
because Bell Atlantic made a business decision to self insure. See
Heavens, 755 S.W.2d at 333 ("[I]t would be . . . unconscionable to allow an
employer to totally avoid providing employees with [uninsured] motorist
coverage by choosing to be self-insured."). It is inconceivable that this
result was intended by the Legislature when it enacted § 941(f), which was
intended to apply to drivers generally. Therefore, the trial court's
decision in Bell Atlantic's favor must be reversed.

C. Bell Atlantic's UIM Coverage

30. The remaining issue is the extent of Bell Atlantic's UIM
coverage. Under today's decision if Bell Atlantic's UIM coverage is equal
to or less than the tortfeasor's liability coverage of $500,000, Bonanno
has recovered all he can from the company for the accident. As one might
expect, the parties disagree about the extent of Bell Atlantic's UIM
obligation; Bell Atlantic at one time claimed it provided UIM coverage only
at the statutory amount, and Bonanno claims the company has no UIM limits
because its self insurance coverage is unlimited and the company cannot
prove it rejected the higher limits.

31. Resolution of this dispute requires a factual inquiry into
the limits of Bell Atlantic's self-insurance plan because "self insurance"
is a term with no specific legal meaning. 1 L. Russ & T. Segalla, Couch on
Insurance 3d § 10-1, at 10-2 (1997). Most often, the term encompasses
situations where a large corporation, governmental entity, or charitable
organization chooses to forego purchase of a commercial insurance policy in
favor of managing its potential risks through the establishment of a
reserve fund or purchase of a bond. Id.; see also 1 E. Holmes & M. Rhodes,
Holmes's Appleman on Insurance 2d § 2.18, at 326 (1996). In some cases,
the self-insured entity purchases a commercial insurance policy with a high
deductible so that it meets losses up to that deductible through the
entity's own assets. 1 L. Russ & T. Segalla, supra, at 10-3; 1 E. Holmes &
M. Rhodes, supra, at 326; M. Flory & A. Walsh, Know Thy Self-Insurance (And
Thy Primary and Excess Insurance), 36 Tort & Ins. L.J. 1005, 1007 (2001);
see e.g., McClain v. Begley, 465 N.W.2d 680, 681 (Minn. 1991) (company's
self-insurance plan entailed a self-insurance reserve of $500,000 before
excess insurance policy provided by commercial insurer for an additional
$2,500,000 was triggered).

32. In this case, the record shows that Bell Atlantic purchased an
excess liability policy with coverage for its automobiles. In 1999, the
policy had a self-insurance retention of $2,000,000, which meant that the
company was self insured up to $2,000,000 before the commercial policy was
triggered. It is unclear from the record whether the self-insurance
retention amount at the time of Bonanno's accident was also $2,000,000, or
some other amount. With respect to coverage for UIM, the record also
contains conflicting evidence. Deposition testimony from company officials
indicated that under Bell Atlantic's self-insurance plan, the company would
pay UIM benefits, but only up to the amounts required by statute. Later
supplemental interrogatory responses indicated that the company's
self-insurance plan in Vermont did not include benefits for UIM because
company attorneys advised that Vermont did not require self insurers to
provide UIM coverage. Bonanno claims that Bell Atlantic cannot prove that
it selected the statutory limits for UIM, rather than providing coverage
equal to its general liability limits. See Lecours v. Nationwide Mut. Ins.
Co., 163 Vt. 157, 159, 657 A.2d 177, 179 (1995) (although insurer has
burden to prove the insured rejected higher UM limits, the rejection need
not be in writing).

33. The trial court did not determine the extent of Bell
Atlantic's liability, if any, because it granted the company summary
judgment on the applicability of the workers' compensation exclusivity bar.
Like the trial court, we review the record to determine if a genuine
dispute over material facts exists and any party is entitled to judgment as
a matter of law. See V.R.C.P. 56(c)(3) (summary judgment proper when no
genuine material facts are in dispute and any party is entitled to judgment
as a matter of law); Mellin v. Flood Brook Union Sch. Dist., ___ Vt. ___,
___, 790 A.2d 408, 417 (2001) (Court uses same summary judgment standard on
appeal as trial court used below). It is apparent from the conflicting
factual record before us now that summary judgment on Bell Atlantic's
self-insurance limits is not appropriate. We therefore remand the matter
back to the trial court for final determination

* * *

Click the case caption above for the full text of the Court's opnion.

In Supreme Court Docket No. 2000-053, we answer the certified question
in the negative. In Supreme Court Docket No. 2000-410, we affirm the
court's judgment for appellee American Protection Insurance, and we reverse
the judgment in favor of appellee Bell Atlantic Communications, Inc. and
remand for further proceedings consistent with this opinion.

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Reported by: Fountainheads