Jottings By An Employer's Lawyer

Tuesday, June 05, 2007

When the Workers Comp Bar, Doesn't

One of the great legal compromises in the workplace has been the trade off between protection against unlimited liability for the emplyer and no fault protection for workers injured on the job, through the mechanism of workers compensation. In return for agreeing to the no-fault insurance so the employee does not have to show the employer was negligent, the employer receives the protection of limited liability. Except when they don't.

Today's report of a Mississippi trial court verdict of an initial $9.5 million dollars against Franklin Corp., Furniture firm's damages cut (reduced by the trial judge to $3.8 million), is a reminder of the exceptions to the workers compensation limitation of liability. Here the four workers alleged that their injuries were caused by exposure to propyl bromide which was contained in Soft Seam Adhesive used by the company from 1999 to 2004.

The plaintiffs' lawyer explained the exception:

Workers Comp covers accidental injury. It does not provide coverage for intentional injury where the employer knew of the hazardous condition and knew its employees were being harmed. That's what made this case different.

Of course Franklin begs to differ that it intended to cause the injury and whether that was proved will ultimately be determined upon appeal, but the general premise — that there is an intentional tort exception to the workers compensation bar — is accurate.

In Texas, which is also the only state that does not force employers to participate in the workers compensation system, there is also an exception in the case of the death of an employee if it can be shown that death was caused by gross negligence.


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