Caps & Immunities
is the split in the ordinary unity of interest between an employer and its insurer. Te Claimant retained her workers’ compensation claim against the employer while at the same time was permitted to sue the insurer for the intentional tort. Since this was not a third party claim there would be no subrogation rights and no statutory provision requiring a sharing of the proceeds. Intriguing questions are presented as to any credit or offset the insurer might be allowed for payments it made under the workers’ compensation claim for injuries or damage common to both claims or whether the insurer might be denied such a credit based on the proof of wrongful conduct. As will be discussed infra, co-employees under many
circumstances, do not enjoy the employer’s statutory immunity and in Maryland may be sued for causing injury to a coworker. However, in the context of deliberate conduct that may result in the loss of an employer’s statutory immunity, the issue often arises as to whether assaults by supervisory co- employees constitute the act of the employer so as to enable the injured party to elect to sue the employer rather than be limited to remedies under the Workers’ Compensation Act. Te mere fact that a co-employee assailant is the injured
to injure the employee. Employee’s invasion of privacy claim against her employer was allowed to proceed.)
employee’s supervisor is not in and of itself determinative of whether the employer can be held liable for his actions. 23 Te Maryland decisions at one time held that in order for a co-employee’s intentional conduct to be attributable to an employer, a co-employee assailant must be acting as the “alter ego” of the employer at the time of the alleged misconduct.24 Te “alter-ego” doctrine was eventually abrogated by the Court of Appeals in Federated Dept. Stores, Inc. v. Le.25
In
Le, a worker brought an action against his employer for false arrest, defamation, and intentional infliction of emotional distress, alleging that his employer’s security director planted store merchandise in the employee’s briefcase, detained and held the employee against his will and then refused to let the employee leave until the employee signed a false confession admitting to the theft of the merchandise. Te employer argued that the exclusivity provisions of the Workers’ Compensation Act precluded these claims. Te Court of Appeals held that, under the “deliberate intent” exception of the Act, an employee need not be shown to have acted as the “alter ego” of the employer in order for the employer to be held liable for the employee’s intentional actions.26
Te Court
23 Continental Casualty Co. v. Mirabile, 52 Md. App. 397, 398-399, 449 A.2d 1176, 1184 (1982). 24 Schatz v. York Steak House Systems, Inc., 91 Md. App. 494, 444 A.2d 1045 (1982). 25 324 Md. 71, 595 A.2d 1067 (1991). 26 Id. at 84-87, 595 A.2d at 1073-1075.
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