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Case name: Lewis v. Gilmore, No. WD72629 (Mo. Ct. App. 04/12/11).

Ruling: The Missouri Court of Appeals held that a worker could sue his employer and simultaneously collect workers' compensation benefits from his separate statutory employer.

Summary: A worker died when the tractor-trailer in which he was riding as a passenger overturned. The driver was operating the truck in the course and scope of his employment, and the worker was also in the course and scope of his employment at the time of the accident. The employer operated the truck pursuant to a contract with a transportation company. The employer did not carry workers' compensation insurance. The worker's wife sued the employer and simultaneously sought workers' compensation benefits from the employer and company. The workers' compensation administrative law judge determined that the company was the worker's statutory employer and awarded the wife death benefits and funeral benefits. The Missouri Court of Appeals held that the wife's suit against the employer could continue.

Missouri law provides an exception to the exclusive remedy rule when an employer does not have workers' compensation insurance. In those circumstances, an injured worker can sue, recover under workers' compensation, or file a request with the second injury fund. The court explained that the employer and company were separate entities and each had the responsibility to secure insurance. The fact that the company, as the statutory employer, complied with its obligation to secure insurance did not excuse the employer's obligation. The workers' compensation award and the suit were not inconsistent remedies because they were against two separate employers.

The court noted that any recovery in the suit would be subject to subrogation rights by the company, so there would be no double recovery.

Read more at the WorkersComp Forum homepage.

May 31, 2011

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