Larson’s Spotlight on Recent Cases: Contribution/Indemnity Defense in Third Party Suit When Employer Hires Illegal Alien

Larson's Spotlight on Contribution, Firefighter's Rule, Safety Device, and Credit. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

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NY: Employer Does Not Lose Contribution/Indemnity Defense in Third Party Suit by Hiring Illegal Alien

In most cases, when an injured worker has filed suit against a third party allegedly responsible for the worker's injuries, that third party may not seek contribution or indemnification from the employer [see Larson's Workers' Compensation Law, § 121.01, et seq.] that it contends was also responsible.  Does the employer lose that defense if it has, in violation of the federal IRCA statute, knowingly hired an undocumented worker who sustained injury within the course and scope of the employment?  A New York appellate court recently held that alleged violations of IRCA, considered true for the purposes of the motion before the trial court, did not abrogate the protections provided by the exclusivity provisions of the N.Y. Workers' Comp. Law.  For additional discussion, see http://www.workcompwriter.com/new-york-by-hiring-illegal-alien-employer-did-not-give-up-protection-against-third-party-claims-for-contribution-andor-indemnification/.

See New York Hosp. Med. Ctr. v. Microtech Contracting Corp., 2012 N.Y. App. Div. LEXIS 6240 (Sept. 26, 2012).

See generally Larson's Workers' Compensation Law, § 66.03, 121.01.

US: Mississippi Police Officer's Suit Against Auto Service Center With Oily Floor Barred by "Firefighter's Rule"

Applying the "Firefighter's Rule," as adopted in a number of jurisdictions and by the Supreme Court of Mississippi in 2002, a federal district court in Mississippi recently held that an on-duty police officer, who sustained injuries when he slipped on motor oil at the defendant's auto service center, could not recover from the defendant in tort.  Under the "rule, the premises owner cannot be liable for accidental or even negligent injuries sustained by a firefighter or police officer while performing his or her official duties. The rule prohibits a firefighter (or officer) from "complaining about the negligence that creates the very need for [the] employment."  The appellate court noted that the officer was present at defendant's premises solely in his role as a law enforcement officer, responding to a disturbance call. While attempting to resolve the dispute between the defendant and the customer, the officer stepped between them and slipped on a oily floor.  The officer contended that the "Firefighter's Rule" was not applicable since he was not injured while involved in the altercation, but by an alleged defect on the premises, supposedly unrelated to the altercation.  The court indicated that the "Firefighter's Rule," as adopted in Mississippi, did not differentiate between such causes under these circumstances.

See Collins v. Flash Lube Oil, Inc., 2012 U.S. Dist. LEXIS 141439 (S.D. Miss., Sept. 30, 2012).

See generally Larson's Workers' Compensation Law, § 110.08.

OH: Employer Removes Safety Device But Rebuts Presumption in Intentional Tort Action Filed by Employee

Under Ohio's particular flavor of the "substantially certain rule," the deliberate removal of a safety guard creates a rebuttable presumption that the removal was committed with intent to injure another if an injury occurs as a direct result of that removal [see Ohio R.C. 2745.01].  In a recent case where an employee sustained injuries when he was hit by a spray of hot glycerin from a leaky pipe and valve from which a "sample box" had been intentionally removed some four years earlier (while not technically a safety device, had the box been in place, the employee would not have been injured), an Ohio appellate court agreed that the employer successfully rebutted the presumption of intentional injury where it offered evidence that after the removal the box, it had instituted an extensive safety campaign at the work premises (except for one scrape on the head, the entire facility had been injury-free for more than six years), where the injured employee was experienced and had received extensive and ongoing training on using the equipment and personal safety, including the employer's policies that required that the employee do a "mental risk assessment" before performing work, and that he cap all uncapped pipes.  It was undisputed that had the employee capped the pipe in question-plain view showed that it was open-the accident would not have occurred.

See Knight v. Proctor & Gamble Co., 2012 Ohio App. LEXIS 3965 (Sept. 28, 2012).

See generally Larson's Workers' Compensation Law, § 103.04.

NY: Carrier Entitled to Dollar-for-Dollar Credit for Tort Action Proceeds in Employee's Rape Case

A New York appellate court recently held that a workers' compensation carrier, who paid benefits to an employee who was assaulted and raped at her workplace, is entitled to credit against future comp benefits owed where the employee settled her federal civil action against the employer and various co-employees for $650,000. The aide had contended that New York's subrogation statute did not apply to her settlement proceeds because of the nature of the harm done to her. The appellate court disagreed.  The employee's settlement pertained to the same injuries as those for which she recovered workers' compensation benefits.  The carrier, therefore, had a lien against any recovery.

See Beth V. v. New York State Office of Children & Family Servs., 2012 N.Y. App. Div. LEXIS 6318 (Sept. 27, 2012).

See generally Larson's Workers' Compensation Law, § 87.03.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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