An employee injured on the job can file a negligence lawsuit against a co-employee after settling a Missouri worker’s compensation case, according to a new case from the western district.
Robinson v Hooker, WD 71207 (Mo. App. 8-3-10), reversed an order to dismiss a negligence claim filed after a plaintiff settled a worker’s compensation claim for permanent partial disability for loss of vision. A street cleaner lost control of a high pressure hose and struck the plaintiff, causing blindness in the right eye. The court of appeals rejected defenses to the subsequent tort claim based on worker’s compensation immunity and res judicata.
A co-worker involved in an accident after the 2005 statutory changes is no longer entitled to assert immunity under §287.120. Leading up to the 2005 amendments, Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982), allowed immunity for co-workers without proof of “something more” beyond negligence. Suits against co-employees failed unless a co-employee purposefully and dangerously caused or increased a risk of injury.
The court concluded that the 2005 requirements to apply strict construction required a re-evaluation of the defense created by Badami. Section 287.120 extends immunity only to employers, and a co-worker did not meet the definition of “employer” under §287.030.1. There is no immunity unless a co-worker “squarely” falls within the definition of employer. Robinson v. Hooker asserts this interpretation was being “mindful” to “effectuate legislative intent” as reflected in the “plain and ordinary language of the statute” and pursue a long-standing principle to preserve common law rights.
A claimant’s settlement is not res judicata in a subsequent claim against a co-worker as there was a lack of identity of claims and parties. Claimant’s negligence claim includes additional damages of loss of consortium and pain and suffering outside the scope of benefits permitted in the worker’s compensation statute. The court further found insufficient facts to support a defense based on official immunity.
The 2005 amendments were promoted to limit employer liability. Section 287.020.10, in the 2005 amendments, specifically abrogates several controversial cases which a broadly construed “accident” and “arising out of and in the course of employment.” The “strict construction” changes, however, have often been construed to narrow employer defenses: Roscom v Woodson Builders, 1-12-10 (drug testing), Norman v Phelps, 256 S.W.3d 202 (Mo. App. 2008)(no appeal of temporary award), Allcorn v Tap Enterprises, 277 S.W.3d 823 (Mo. App. 2009)(notice) Robinson v Hooker, perhaps more than any of these other cases, opens a larger rift in the limited liability of workplace accidents that may encourage a legislative fix similar to 287.020.10, or very prudent drafting of broad releases before settling any compensation claim with potential co-worker negligence liability.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts