Del. Court: Employee Horseplay May Fall Outside Workers’ Comp Law

July 12, 2007

  • July 12, 2007 at 11:56 am
    Jay says:
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    If this guy is able to successfully sue, he’d better be prepared to return the worker’s comp $300,000! Can’t have it both ways, bud.

  • July 12, 2007 at 1:49 am
    Wes says:
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    Jay, I hate to tell you, but the injured party may in fact double dip in many circumstances. Most states have an “equitable distribution” or similar law that serves to stiff the WC carrer when it comes to collecting subrogation on a tort claim.

  • July 12, 2007 at 1:53 am
    Sam says:
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    It will be interesting to see if there is anyone to defend the co-workers as the suit proceeds. The CGL and EL policies both have exclusions that would appear to apply.

  • July 12, 2007 at 1:58 am
    clm mgr says:
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    The WC carrier will undoubtedly be able to file a Complaint in Intervention if the plaintiff sues his 3 former coworkers personally. That would be the most expeditious way for the WC carrier to get a ruling on whether they have a right to get anything back on their contributions to the claim.
    The exclusionary language concerning intentional torts in most GL policies is easily defeated in many cases by a defendant arguing that while he intended to put duct tape all over the plaintiff’s body, he did not intend to injure the plaintiff in the manner claimed, and therefore the tort was not intentional and therefore coverage exists.

  • July 12, 2007 at 2:03 am
    stu says:
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    He was entitled to his W.C. benefits, because he was not a participant in the horse-play, he was the victim. The employer provided the coverage, as required by law.
    Why shouldn’t the injured party be able to recover from the individuals who recklessly caused him to sustain serious injuries? Why should they be shielded from having to pay for their actions, just because the employer had state-mandated W.C. coverage.
    I have no problem with the employer possibly having a lien against part of any 3rd party suit successfully brought by the employee, and being re-imbursed for part of their W.C. loss.
    However, I don’t think the victim should have to choose between receiving W.C. benefits or seeking damages from the people who injured him, in a case which appears to be so violent,as to go way beyond mere horse-play, and more accurately be described as an assault.
    As an aside, I hope the victim’s former co-employees, are now former employees. If ever an action would warrant termination, this would seem to be the classic case.

  • July 12, 2007 at 2:06 am
    job hits "r" us says:
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    Otherwise, if someone really wanted to mess someone up with a good chance of impunity, they would put a hit on him at work–“no shootin, ya understand–just busting some kneecaps is all. ”

    Think of the human cost, not just your masster’s bottom line.

  • July 12, 2007 at 2:11 am
    Reagan says:
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    Stu,

    Dop you drink tea when you have you have your crumpets, Madam?

  • July 12, 2007 at 2:12 am
    Hal says:
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    I want to thank and congratulate those who responded to this article by their discussions. As a result, this was one of the most concise and enlightening pieces that I have seen in this publication. Thank you all again for sharing your opinions.

  • July 12, 2007 at 3:05 am
    Sam says:
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    Clm Mgr, the coverage question will not just rise on whether the co-employees’ acts were intentional versus the injury, it will also hinge on whether they were insureds. The ruling that gives the injured worker the right to sue them for their actions indicates that the co-employees were not within the course and scope of their employement when they hurt the claimant. When not in the course and scope of employment for a business, the co-employees will not qualify as an insured under the CGL policy. Further, the CGL excludes claims for injuries to employees whether they are covered by WC or not. The best case scenario for the co-employees may be that the CGL carrier provides a defense under a Reservation, but expressly denies any indemnity to the injured employee if there is a finding against the co-workers.

    Under the EL policy, the co-employees would not be insureds, and there would be no duty to defend them.

    It will be interesting to see what happens in this case in the future.

    Under the E

  • July 12, 2007 at 3:10 am
    clm mgr says:
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    Sam: Read my post again…I said the coworkers would be personally sued, inferring that their homeowners’ coverages, if they have homeowners’ policies, would be defending them. I had already considered the coverage defenses under the GL and EL policies and I agree with your comments about the GL and EL coverages.



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