Flores v. Goeman, No. 2012AP2272 (Wis. Ct. App. 08/06/13).
The Wisconsin Court of Appeals held that a worker's exclusive remedy for his injuries was in workers' compensation.
What it means: In Wisconsin, the exclusive remedy provision will not bar an injured worker's suit against his coworker when the employer, a city, had undertaken liability for indemnification of coworker lawsuits through a provision in a collective bargaining agreement.
Summary: A police sergeant was making an arrest in the line of duty. A fellow officer arrived for backup. The coworker failed to put his squad car in park, causing the vehicle to roll forward and pin the sergeant between two cars. He sustained multiple injuries and received workers' compensation benefits. The sergeant sued the coworker. The coworker asserted that the suit was barred by the exclusive remedy provision of workers' compensation. The Wisconsin Court of Appeals dismissed the suit, finding that workers' compensation was the sergeant's exclusive remedy for his work-related injury.
The parties did not dispute that the sergeant and coworker were acting within the scope of their employment and were operating police cars owned by the city. The sergeant argued that the coemployee exception of the exclusive remedy provision applied. The exception applies when a city undertakes liability for indemnification of coworker lawsuits through a provision in a collective bargaining agreement. The collective bargaining agreement in this case did not contain an express provision by which the city waived its right to immunity or expressly agreed to indemnify its workers for judgments rendered against them.
The court also rejected the sergeant's argument that state laws created an indemnification agreement. While state law required the city to pay judgments against their employees for liability incurred through the performance of their official duties, the statute was not encompassed within the language of the exclusive remedy provision. The law did not reference coemployee actions.
A dissenting judge opined that the exception to coworker immunity applied, finding that the collective bargaining agreement expressly provided for the city to undertake liability for a suit brought against its employee.
Read more at the WorkersComp Forum homepage.
October 21, 2013
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