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An uninsured employer could be sued for wrongful death because claimant's worker's compensation settlement against a statutory employer was not an election of remedies, according to the Missouri Supreme Court in Lewis, etal, v. Gilmore, etal, No. SC 91834, 2012 Mo Lexis 109 (June 12, 2012).
A claimant may elect to sue his employer in circuit court if the employer fails to carry worker's compensation insurance. Claimant worked for an uninsured trucking company, Freeman, which operated under a contract with DOT when his truck over turned resulting in his death. Claimant's survivors filed worker's compensation and wrongful death suits against both claimant's employer and the statutory employer, DOT. The circuit court stayed the wrongful death suit until the Commission ordered DOT to provide compensation benefits, and then the circuit court granted summary judgment in favor of Freeman. The Supreme Court now reverses the summary judgment.
The election of remedies doctrine prevents further recovery once a party prosecutes a case to a final judgment to prevent double recovery from a single injury. The majority concluded that the election of remedies doctrine did not apply in this case with multiple defendants because claimant did not obtain a final judgment against the uninsured employer and "to not allow a civil action takes away one of the options the General Assembly gave an employee to seek redress against an employer who has done nothing to secure workers' compensation insurance for his employees." A dissent argued claimant elected his remedy because he already received a recovery from a single injury through worker's compensation and to allow further recoveries let claimant have his cake and eat it too.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
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