This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals

     Marie Norine Livingston,


Metropolitan Council; formerly

Metropolitan Transit Commission,

Filed October 15, 1996

Harten, Judge

Hennepin County District Court

File No. 95-010197

Jonathan D. Gallop, Milavetz, Gallop & Milavetz, P.A., 1915 57th Avenue
North, Brooklyn Center, MN 55430 (for respondent Livingston)

Russell S. Ponessa, David H. Wright, Popham, Haik, Schnobrich & Kaufman,
Ltd., 3300 Piper Jaffray Tower, 222 South 9th Street, Minneapolis, MN 55402
(for appellant Metropolitan Council)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and
Harten, Judge.
                        Unpublished Opinion

HARTEN, Judge (Hon. Robert G. Scheifelbein, District Court Trial

Appellant Metropolitan Council (formerly the Metropolitan Transit
Commission) appeals from a summary judgment in favor of respondent Marie
Norine Livingston. The judgment entitles Livingston to uninsured motorist
benefits in the amount of $25,000 from the Metropolitan Council, in
addition to the workers' compensation benefits that she has already
received from the Council. Based on the supreme court's recent decision in
Western Nat'l Mut. Ins. Co. v. Casper, 549 N.W.2d 914 (Minn. 1996),
we affirm.

The Metropolitan Council employed Livingston as a bus driver. In August
1990, while acting in the scope and course of her employment, Livingston
was injured in a two-vehicle accident. The Metropolitan Council paid and
continues to pay Livingston workers' compensation benefits.

The Metropolitan Council was then self-insured for uninsured motorist
coverage in the amount of $25,000 per person. Livingston claimed uninsured
motorist benefits from the Metropolitan Council, which denied her claim,
citing the exclusivity provision of the workers' compensation statutes. The
district court granted summary judgment for Livingston. The Metropolitan
Council appeals.

The exclusivity provision of the workers' compensation statutes provides:
        The liability of an employer prescribed by this
        chapter [the workers' compensation statutes] is
        exclusive and in the place of any other liability to
        such employee * * * or other person entitled to
        recover damages on account of such injury or death.

Minn. Stat. 𨴈.031 (1994). Whether Livingston's claim for uninsured
motorist benefits is barred by this provision is a question of law;
therefore, we are not bound by the district court's decision. See Karst
v. F.C. Hayer Co., 447 N.W.2d 180, 181 (Minn. 1989); Rayford v.

Metropolitan Transit Comm'n, 379 N.W.2d 161, 164 (Minn. App. 1985),
review denied (Minn. Feb. 14, 1986).

In Brunmeier v. Farmers Ins. Exch., 296 Minn. 328, 208 N.W.2d 860
(1973), the supreme court allowed an employee to recover under his own
uninsured motorist policy in addition to receiving workers' compensation
benefits. In Janzen v. Land O'Lakes, Inc., 278 N.W.2d 67 (Minn.
1979) the supreme court, relying on Brunmeier, held that an employee
was entitled to uninsured motorist benefits in addition to workers'
compensation benefits because the employee's right to receive uninsured
motorist benefits was contractual. Id. at 69-70.
In Fryer v. National Union Fire Ins. Co., 365 N.W.2d 249 (Minn.
1985), the supreme court explained that if an employee's uninsured motorist
benefits could be reduced by a workers' compensation award, the burden of
loss from an auto accident would be shifted from the auto insurance system
to the workers' compensation program, which would be ``inconsistent with
the legislative coordination of the various reparation payments.'' Id.
at 255. See also Rayford, 379 N.W.2d at 164-65 (relying on
Fryer and concluding that workers' compensation benefits should not
have been deducted from wage loss award); Murphy v. Milbank Mut. Ins.
Co., 368 N.W.2d 753, 758 (Minn. App. 1985) (affirming refusal to reduce
uninsured motorist liability by amount of workers' compensation benefits,
citing Fryer), review granted on other grounds (Minn. July
26, 1985), affirmed in part and remanded in part 388 N.W.2d 732
(Minn. 1986); Wills v. State Farm Mut. Auto. Ins. Co., 364 N.W.2d
504, 506 (Minn. App. 1985) (applying Brunmeier, despite fact that
employee would receive a double recovery).

Recently, in Western Nat'l Mut. Ins. Co. v. Casper, 549 N.W.2d 914
(Minn. 1996), the supreme court reaffirmed its decisions in Fryer
and Brunmeier. There, as in the instant case, the employer's
auto insurer was also its workers' compensation insurer. The supreme court
        It must be remembered, however, that regardless of
        the identity of the workers' compensation insurer,
        any reimbursement of workers' compensation benefits
        is a function of the Workers' Compensation Act, not
        the provisions of the underinsured motorist

Id. at 918 n. 2.

The supreme court rejected the argument that the legislature's enactment of
the collateral source statute(1)
        [Footnote] (1)The collateral source statute, enacted
        in 1986, provides, in relevant part, that an award
        in a civil action to compensate a plaintiff for
        damages must be reduced by payments made to the
        plaintiff pursuant to the workers' compensation act.
        Minn. Stat. 𨹼.36 (1994). ``The primary
        purpose behind the statute is to prevent windfalls
        by plaintiffs at the expense of defendants.''
        Rogers v. Ponti-Peterson Post #1720 Veterans of
        Foreign Wars, 495 N.W.2d 897, 902 (Minn. App.
        1993) (citing Imlay v. City of Lake Crystal,
        453 N.W.2d 326, 334 (Minn. 1990); Buck v.
        Schneider, 413 N.W.2d 569 (Minn. App. 1987) ).

eroded the Fryer and Brunmeier decisions:
        [T]he collateral source statute was not intended to
        shift the burden of loss for an auto accident from
        the auto injury reparations system to the workers'
        compensation system. For that reason we are also of
        the opinion that the rationale of Fryer and

        Brunmeier was not impaired by the adoption of
        the collateral source statute and still flourishes


In light of Casper, we affirm the district court's decision that
Livingston may receive both uninsured motorist benefits and workers'
compensation benefits from the Metropolitan Council.