The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the plaintiff's Motion for Partial Summary Judgment and defendant's Cross Motion for Summary Judgment. The Court heard argument on these motions on November 7, 1989. After careful consideration of the motions, the oppositions, and the entire record herein, the Court concludes that plaintiff's motion for partial summary judgment must be denied and defendant's motion for summary judgment must be denied.
The facts of the case may be briefly stated. On April 25, 1985, plaintiff Jannies A. Holmes was a resident of the District of Columbia employed by Washington Metropolitan Area Transit Authority (hereinafter "WMATA") as a bus operator. On the above date, plaintiff was operating a WMATA bus eastbound on Eastern Avenue, N.E., Washington, D.C., when the bus she was driving was struck from behind by a motor vehicle driven by an alleged uninsured motorist, Mr. Kenneth Allen. Holmes received her statutory compensation benefits from WMATA required under the District of Columbia Workers' Compensation Act, D.C.Code Ann. §§ 36-301 through 36-344 (1988) (hereinafter "WCA"). Plaintiff subsequently filed the instant action seeking $ 10,000 in uninsured motorists benefits pursuant to § 35-2106(f) of the District of Columbia Compulsory/No-Fault Vehicle Insurance Act of 1982, set forth at D.C.Code Ann. §§ 35-2101 through 35-2113 (1985 Supp.) (hereinafter "No-Fault Act").
Holmes has moved for partial summary judgment on the issue of liability for uninsured motorist coverage. Summary judgment can only be entered if everything in the record demonstrates that no genuine issue of material fact exists. "Only disputes over facts that will affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Holmes contends that since she was injured as the sole result of the negligence of an uninsured motorist and has incurred more than $ 5,000 in medical expenses, she is entitled to recover up to $ 10,000 in uninsured motorist coverage from WMATA for her "non-economic losses" under the No-Fault Act. Holmes relies upon Thomas v. Washington Metropolitan Area Transit Authority, 270 U.S. App. D.C. 77, 846 F.2d 1536 (D.C.Cir. 1988) (per curiam) for support. While acknowledging that as a self-insured, it was required to maintain the minimum uninsured motorist coverage for non-economic losses, WMATA argues that Holmes is not entitled to benefits because she has not sufficiently demonstrated that the adverse driver was in fact uninsured or the driver of an uninsured motor vehicle as defined under the No-Fault Act.
Since whether or not the driver was insured at the time of the accident will affect the outcome of this case under the No-Fault Act, this factual dispute is indeed "material". Although the parties herein agree about the basic facts, they dispute what inferences should be drawn from them. Under these circumstances, summary judgment would be improper. It is not the court's function to try facts on a summary judgment motion but only to determine whether a genuine factual dispute exists. Mardirosian v. American Institute of Architects, 474 F. Supp. 628, 639 n. 20 (D.D.C. 1979). Accordingly, plaintiff's motion for partial summary judgment must be denied.
For the purpose of its cross motion for summary judgment, WMATA concedes that there is no genuine issue of material fact. Thus, the Court will in addressing WMATA's arguments assume that the adverse driver was insured.
First, WMATA contends that plaintiff is barred from seeking additional compensation -- i.e. the requested uninsured motorist benefits -- from its employer by the exclusive remedy provisions of the WCA. See D.C.Code Ann. § 36-304 (1988). Holmes cites McCrae v. Marques, 688 F. Supp. 653 (D.D.C. 1988) for the contrary proposition that the exclusivity clause of the WCA does not bar an employee from seeking benefits from an employer under the No-Fault Act. The McCrae court stated:
Although workers' compensation benefits are generally an employee's sole and exclusive remedy against an employer pursuant to D.C.Code § 36-304, the Court is persuaded that the City Council, by enacting the No-Fault Act after enacting the Workers' Compensation Act, intended that an employee injured in the course of his employment, while in a motor vehicle provided by his employer, receive PIP [personal injury protection] benefits. The statute gives no indication that an employee of WMATA is exempt from this rule.
Id. at 655-56 n. 5. That Holmes herein seeks uninsured motorist, rather than personal injury protection, benefits pursuant to the No-Fault Act is immaterial. WMATA is the insurer responsible to provide such benefits to Holmes and Holmes may seek these benefits even though she has already received workers' compensation payments from WMATA.
Second, WMATA argues alternatively that even if Holmes may recover benefits from them under both the WCA and the No-Fault Act, the uninsured motorist benefits could be offset due to the employer's unqualified right of assignment and reimbursement against those benefits. It cites as authority for this argument Lee v. District of Columbia, 559 A.2d 308 (D.C. 1989), and § 36-335 of the WCA which reads in relevant part:
Acceptance of such compensation [under the WCA] . . . shall operate as an assignment to the employer of all rights of the person entitled to compensation to ...