Blaming the Employer Could Negatively Impact Your Client's Recovery from a Third-party Tortfeasor

• Jurisdiction: California,United States
• Author: ERIC RITIGSTEIN, ESQ.
• Publication year: 2015
• Citation: Vol. 28 No. 3

Blaming the Employer Could Negatively Impact Your Client's Recovery from a Third-Party Tortfeasor

ERIC RITIGSTEIN, ESQ.

Oakland, California

An employee's attorney should be cognizant of the employer's role in causing or allowing the employee's injuries. The attorney should be especially careful about blaming the employer while presenting a workers' compensation claim.

That an employee is entitled to receive workers' compensation benefits for an industrial injury does not restrict the employee's right to sue a third party for civil damages for the same injury. California Workers' Damages Practice, 2nd ed. (Cal CEB 2014) at §3.2, citing Labor Code §3852; De Cruz v. Reid (1968) 69 Cal.2d 217, 222. The employee's right to sue a third party coexists with the right to claim workers' compensation; an injured worker may pursue either or both remedies. Id., citing Lamoreux v. San Diego & Ariz. E. Ry. (1957) 48 Cal.2d 617. Since the amounts recoverable as damages often exceed the sums recoverable as benefits, it is usually by pursuing a damages lawsuit that the employee will receive the maximum combined recovery. The workers' compensation and damages remedies interact, however; if an injured worker is entitled to recover workers' compensation, the attorney should evaluate how any benefits recovery may reduce the damages recoverable in the third-party lawsuit. Id. at §3.3.

Consider the following facts, which were presented to the California Supreme Court in DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593.

Fifteen-year-old Mark DaFonte was seriously injured on his second day of work at Van Erickson Ranches, when his arm was drawn into the moving conveyor belt of a mechanical grape harvester he was attempting to clean by hand. Mark received workers' compensation benefits from Van Erickson's compensation carrier, American Insurance Company. Mark, his parents, and his sister then sued the harvester's manufacturer, Up-Right, Inc., on theories of negligence and product defect. The third-party lawsuit against Up-Right was consolidated with American's subrogation action against Up-Right to recover the workers' compensation benefits paid to Mark.

There was evidence that the grape harvester lacked both a belt guard and an accessible emergency "off" switch. A sign on the harvester warned against touching the moving machinery, but evidence indicated that Up-Right gave Van Erickson no instruction on safe methods of cleaning the belt and that Mark had worked an overly long shift without adequate supervision.

Mark and his family sought to maximize their recovery in the third-party case, but they faced a tricky situation with respect to allocation of fault (and damages) amongst three different culpable parties: (1) Van Erickson, the employer, who is statutorily immune from the...