Caps & Immunities


purchase a workers’ compensation insurance policy covering its employees or be approved for self-insured status.10


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If an


employer fails to purchase workers’ compensation insurance to cover its employees, an injured employee is entitled to elect to either bring a claim for compensation against the employer or bring a tort action for damages against the employer,11


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GAB00409_Trial Reporter Ad2.indd 1 Additional statutory provisions in the Act itself as well 12/15/09 3:24 PM


as competing efforts by litigants to expand and narrow the scope of that immunity have given rise to a body of rules and case law defining who gets the benefit of the immunity and under what circumstances. Te law leaves open the right of the injured worker to bring what is commonly called a “third party” suit against any party other than the employer for causing the injury, 7


and the search for a proper “third


party” to sue in addition to collecting workers’ compensation benefits, has given rise to corresponding efforts by the defense to assert employer immunity whenever possible. Te employer’s immunity from damage lawsuits plays an


integral part of the workers’ compensation scheme and this article will attempt to describe when it is applicable, who is entitled to assert it and under what circumstances.


Loss of the Employer’s Immunity By Failure to Purchase Insurance


Assuming the existence of an employment relationship between a statutorily defined employer8


and employee9 under the Act, an employer under the Act must either


7 Md. Labor & Employ Art. Code Ann. Section 9-901. 8 Md. Labor & Employ Art. Code Ann. Section 9-201. (“Employer” is defined as an entity that employs at least one “covered employee.”)


9 Md. Labor & Employ Art. Code Ann. Section 9-202(a)(“An individual is presumed to be a covered employee while in the service of an employer . . .”).


42 Trial Reporter / Spring 2011


in the latter case the common law defenses of contributory negligence, assumption of risk and the fellow servant doctrine are not applicable. Decisions by attorneys representing injured workers on whether or not to exercise such an election may be difficult, because insurance coverage for both employer liability and workers’ compensation frequently are under the same insurance policy, and an employer who failed to obtain workers’ compensation insurance may also have failed to obtain general liability insurance. In addition, although the common law defenses do not apply in a lawsuit against the uninsured employer, primary negligence on the part of the employer must still be established if an election is made to pursue the employee’s common law remedies, and this may result in less than an assured recovery, whereas workers’ compensation benefits are relatively certain and are payable without regard to fault. On the other hand, the workers’ compensation statute provides drawn out procedures for dealing with uninsured employers. A fund called the Uninsured Employers Fund, represented by attorneys employed by the State, exists, and if one chooses to pursue workers’ compensation benefits in a case involving an uninsured employer, it is not unusual for payment to be delayed for very long periods.12


Loss of the Employer’s Immunity By


Deliberately Causing Injury to the Employee While an employer is immune from common law tort


actions brought by injured workers, in certain situations an employer may lose that immunity as a result of intentional conduct directed toward an injured employee. Under the Act, if a covered employee is injured or killed as a result of the “deliberate intent” of the employer to injure or kill the covered employee, an employee may elect to bring either a claim for compensation against the employer or an action for damages against the employer.13 Gross, wanton, willful


or reckless conduct are not


sufficient. A finding that an employer has by its conduct lost its immunity under this provision requires a showing of a specific intent by the employer to injure or kill the employee, coupled with some action aimed at accomplishing that


result.14 10 Md. Labor & Employ Art. Code Ann. Section 9-402. 11 Md. Labor & Employ Art. Code Ann. Section 9-509. 12 For provisions dealing with uninsured employers, see generally, Md. Labor & Employ Art. Code Ann. Section 9-1003, et seq.


13 Md. Labor & Employ Art. Code Ann. Section 9-509(d). 14 Johnson, 305 Md. at 253, 503 A.2d at 712.


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