Temp Workers in Wisconsin Have Right to File Tort or Claim Workers’ Comp

February 2, 2018

A recent decision handed down by the District III of the Wisconsin Court of Appeals gives injured temporary workers the ability to choose whether to file suit against their employer or claim workers’ compensation benefits.

The case, on appeal from Milwaukee Circuit Court, stems from a deadly single vehicle crash that occurred on August 21, 2014. Carlos Esterley Cerrato Rivera, a passenger, and two others killed in the accident were in a vehicle owned by Alpine Insulation d/b/a A&B Drywall Rock Solid and insured by West Bend Mutual Insurance Company. The vehicle – driven by a temporary worker of Alpine retained through temp service JC Staffing – was traveling between jobs. According to background information provided within the opinion, though Rivera was employed by Alex Drywall, that company provided him to Alpine to work. Alpine paid Alex Drywall for Rivera’s services, and in turn, Alex Drywall paid Rivera for his work. An investigation determined the driver of the Alpine vehicle was negligent.

Rivera was survived by five children, including two minors at the time of his death. After his death, a wrongful death action was filed against Alpine and West Bend on behalf of the two minor children. No claim for workers’ compensation was filed.

The defendants filed a motion for summary judgment (MSJ) stating that because the deceased plaintiff was an employee of Alex Drywall, which was acting as a temporary help agency, exclusive remedy barred the plaintiff’s estate from bringing an action against Alpine. The circuit court sided with the defendants, granting the MSJ.

The plaintiff’s estate appealed the decision.

The appeals court overturned the lower court’s decision finding that the deceased was an employee of Alex Drywall as governed by WIS. STAT.§102.24 which states:

A temporary help agency is the employer of an employee whom the temporary help agency has placed with or leased to another employer that compensates the temporary help agency for the employee’s services.

The court stated that since the deceased was employed by Alex Drywall, the estate of the deceased could not pursue a tort claim against that entity but could still choose between filing a workers’ comp claim or filing a lawsuit against his temporary employer.

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