New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on April 1, 2003 representing the position of the New York State Insurance Department.

Re: Workers’ Compensation and No-Fault Coverage

Question Presented:

If an officer of a New York corporation excludes himself from Workers’ Compensation coverage in New York, and has an accident involving a commercial vehicle with No-Fault personal injury protection coverage ("PIP"), is the PIP coverage on the vehicle the primary coverage or is the PIP coverage excess to the primary Workers’ Compensation coverage required by law?

Conclusion:

Assuming the officer of the corporation was required by the New York Workers’ Compensation Law to have Workers’ Compensation coverage, that would constitute the primary coverage. No-fault PIP benefits would become the excess coverage pursuant to N.Y. Ins. Law § 5102(b)(2) (McKinney 2000).

Neither the Insurance Law nor regulations promulgated thereunder address the issue of whether an officer of a corporation may exclude himself from Workers’ Compensation coverage in New York. This question is subject to the provisions of the New York Workers’ Compensation Law and interpretation by the Workers’ Compensation Board.

Facts:

No additional facts were given.

Analysis:

Assuming an officer of a corporation was required by the New York Workers’ Compensation Law to have Workers’ Compensation coverage, and if he excludes himself from that coverage, the Workers’ Compensation coverage would be considered the primary coverage. No-fault PIP benefits would become the excess coverage pursuant to N.Y. Ins. Law § 5102(b)(2) (McKinney 2000), which states, in relevant part:

(b) "First party benefits" means payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, less:

. . .

(2) Amounts recovered or recoverable on account of such injury under state or federal laws providing social security disability benefits, or workers’ compensation benefits, or disability benefits under article nine of the workers’ compensation law, or medicare benefits, . . .

Neither the Insurance Law nor regulations promulgated thereunder address the issue of whether an officer of a corporation may exclude himself from Workers’ Compensation coverage in New York. This question is subject to the provisions of the New York Workers’ Compensation Law and interpretation by the Workers’ Compensation Board. You may log onto the New York State Workers’ Compensation Board website at www.wcb.state.ny.us for further information.

For further information, you may contact Associate Attorney Meredith S. Kaufer at the New York City Office.