Caps & Immunities Tis ban on the impleading of employers under third
party practice has been reiterated in a number of cases, with the Court noting that the prohibition only applies if there has not been an express contractual undertaking by the employer to provide contribution or indemnification.55
Negligent Co-Employees
Do they Share the Employer’s Immunity from Suit or Can A Tird Party Action Be Brought Against Tem? Under the Act, when a person other than the employer is
liable for an employee’s injury, a covered employee can bring both a claim for compensation against the employer and an action for damages against the party liable for the injury.56
Tis
is called a third party suit. Te Workers’ Compensation Act provides an elaborate procedure for dividing up the proceeds of a third party recovery in such a way as to allow the employer to subrogate for all of its workers’ compensation indemnity and medical payments and at the same time allow the injured worker to retain any excess above the employer’s subrogation interest.57 In an effort to maximize the injured worker’s net recovery the Plaintiff ’s bar long ago sought to impose third party liability on negligent co-employees. Te Maryland Court of Appeals held that a co-employee of an injured worker is considered a “third party” under the Worker’s Compensation Act and, as such, is amenable to suit.58
An injured worker may maintain
both a workers’ compensation claim against his employer and a third party tort action against his co-employee.59
Needless to
say, insurance coverage for both claims may be under the same policy, and this common source of potential funds presents some unique difficulties in investigation, defense and compromise of co-employee third party suits. It also results in application of the co-employee exclusion present in most general liability policies, and assuming the policy is not a motor vehicle liability policy,60
may leave the co-employee entirely uninsured.
Maryland’s position permitting co-employee third party suits stands in stark contrast to the vast majority of other
55 American Radiator and Standard Sanitary Corp v. Mark Engineering Co., 230 Md. 584 (1963 56 Md. Labor & Employ Art. Code Ann. Section 9-901 57 Md. Labor & Employ Art. Code Ann. Section 9-902 58 Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969) 59 Md. Labor & Employ Art. Code Ann. Section 9-901 60 Md. Ins. Art. Code Ann. Section 19-504, states that each motor vehicle liability insurance policy issued, sold or delivered in the State “shall provide the minimum liability coverage specified in Title 17 of the Transportation Article.” Md.. Transp. Art. Code Ann. Section 17-103 at the time of the holdings noted infra required minimum liability coverage for bodily injury or death of $20,000.00 per person and $40,000.00 per accident. Tese limits were recently increased to $30,000.00 per person and $60,000.00 per accident. As a general rule, the courts have consistently held that exclusions from statutory mandated
motor vehicle liability insurance coverage not expressly authorized by the Legislature will be held invalid as contrary to public policy. See West American Ins. Co. v. Popa, 352 Md. 455, 723 A.2d 1 (1998)(Insurance policy definition of “uninsured” motor vehicle excluding vehicles owned by governmental unit or by self-insurer held invalid); See also Larimore v. American Ins. Co., 314 Md. 617, 552 A.2d 889 (1989)(“Fellow employee” exclusion under an employer’s motor vehicle insurance policy for a victim’s injuries while as a passenger in a vehicle driven by a fellow employee that excluded all coverage and left co-employee tort defendant uninsured was held invalid). See also Wilson v. Nationwide Mut. Ins. Co., 395 Md. 524, 910 A.2d 1122 (2006)(“Fellow employee” exclusion under an employer’s motor vehicle insurance policy for a victim’s injuries while as a passenger in a vehicle driven by a fellow employee that limited coverage to statutory minimum amounts held valid) & Stearman v. State Farm Mut. Auto Ins. Co., 381 Md. 436, 849 A.2d 539 (2004) (“Household exclusion” under motor vehicle insurance policy held valid above statutory minimum amounts).
jurisdictions,61 which forbid suits against co-employees for
negligence as a result of work-related injuries. Even a survey of Maryland’s sister jurisdictions reveals that Maryland is the only one that allows these co-employee third party suits.62 When the co-employee is a supervisory co-employee
performing functions ordinarily performed by an employer, the Maryland Courts have extended the employer’s immunity to the supervisory co-employee. Supervisory co-employees have been held immune from tort liability for negligence in the discharge or performance of a nondelegable duties of the employer, resulting in an employee’s injury.63
A nondelegable
duty is one on which the employer would remain liable regardless of the acts or omissions of a person or party entrusted to perform it.64
Examples of nondelegable duties include the
employer’s duty to provide a safe place to work (which includes employee supervision and routine work assignments), hiring and retaining competent, nonviolent employees, providing safe equipment in the workplace, and promulgating and enforcing rules governing employee conduct for the purpose of enhancing safety.65
If a supervisory co-employee fails in the performance of
these duties, the “exclusive remedy” provision of the Act would apply, and these co-employees would be immune from suit. Te mere fact that someone is a supervisor, however, does not in and of itself confer immunity. If a supervisory co-employee takes on an affirmative duty towards an injured worker, completely separate from the employer’s nondelegable duties and responsibilities, the Maryland Courts have held that the supervisor is not immune from a common law tort action if injuries resulted from the breach of that duty.66
As an example,
a third party negligence suit against the president of a paper box company employing the Claimant was allowed where the president undertook, separate and apart from his normal duties as president, to give specific instructions to the worker on operating a die-cutting machine in a particular manner, resulting in a work-related injury.67
61 Athas v. Hill, 300 Md. 133, 140, 476 A.2d 710, 715 (1984) (“[O]nly eleven states, including Maryland, extended immunity from liability for negligence to the employer alone and thus permitted suits against coemployees.”)
62 Te District of Columbia by statute forbids co-employee third party suits. See D.C. Code Section 32-1504(b)(“Te compensation to which an employee is entitled . . . shall constitute the employee’s exclusive remedy against the employer . . . and any employee, for any illness, injury or death arising out of and in the course of employment”) Te DC Court of Appeals has surprisingly held that its statutory prohibition on co-employee suits contained within its own workers’ compensation law would be applied to bar a third party co-employee suit in the District of Columbia for an injured worker who was a resident of Maryland and who had a pending Maryland workers’ compensation claim. McGregor v. Grimes, 884 A.2d 605 (D.C.) Equally surprising is the Maryland decision allowing co-employee suits arising out of a would be Virginia workers’ compensation
claim.Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969). Hutzell involved a workers’ compensation claim originally filed in Maryland but then dismissed as not within the jurisdiction of the Maryland Workers’ Compensation Act. Te claim was not refiled in Virginia, although it clearly could have been and may well have eventually been refiled in Virginia. Te Maryland Court relied upon public policy issues, specifically noting that the Virginia rulings prohibiting such suits were violative of Maryland’s public policy. In Hutzell the injured worker was a Maryland resident. Virginia’s statute has been interpreted to bar co-employee suits by use of the language “
...and
while such insurance remains in force he or those conducting his business shall only be liable to any employee... in the manner herein specified.”Feitig v. Chalkley, 185 Va. 96, 100, 38 S.E 2d 73 (1946) (emphasis supplied). Te Feitig Court reasoned that injuries by co-employees are a risk inherent in the business. Id. At 99.
63 Athas v. Hill, 300 Md. 133, 476 A.2d 710 (1984);Hastings v. Mechalske, 336 Md. 663, 650 A.2d 274 (1994).
64 Hastings at 676-678, 650 A.2d at 281-282. 65 Id. 66 Id. 67 Hoeverman v. Feldman, 220 Wis. 557, 265 N.W. 580 (1936).
Trial Reporter / Spring 2011 49
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68