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The Exclusive Remedy ProvisionState-hy-State Survey

ByAlbert B. Randall, Jr. - Franklin & Prokopik, P.C

James A. Reiter and James 1. Ranta - Charfoos, Reiter, Peterson, Jones, Dorland & Hebert, P.C.

The following survey is provided in summary fashion and was compiled by the authors in cooperationwith the member firms of The National Workers' Compensation Defense Network (www.nwcdn.com).

Alabama

Alaska

Arizona

The exclusive remedy doctrine still exists. If theemployer is acting in a "dual capacity" (such as alsoacting as the manufacturer of a defective part), a directtort action may be allowed. There is a direct tortaction for wrongful termination if an employee isterminated solely because he or she filed acompensation claim. If a supervisory employeeintentionally commits an act or omission that causesinjury, a direct tort action may exist.

The exclusive remedy doctrine is alive and well. Thereis an intentional tort exception and the court has heldthat an employer1s violation of safety standardsconstitutes an intentional tort if the employerknowingly subjects an employee to a dangerousprocess with knowledge that harm to the employeewill be a substantial certainty.

As long as the employer secures workers'compensation coverage, either through an insurancepolicy or by self-insured status, the employer and allco-employees are immune from suit. The onlyexceptions to immunity arise where the employeeelects to reject coverage before any injury (the electionmust be in writing), the employer fails to securecoverage, the employer fails to post the proper noticesregarding coverage, or the injury arises from thewillful misconduct of the employer/co-employee. Thewillful misconduct exception is strictly construed to

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Arkansas

California

Canada

Colorado

Connecticut

require a showing that the conduct was undertakenwith the deliberate attempt to cause the resultantinjury. Even if one of those exceptions is met, theexclusivity of the Act remains if the employee acceptsany benefit under the Act following an injury.

The exclusive remedy doctrine applies with a fairlystrong intentional tort exception.

Generally, the exclusive remedy provIsIOn applieswhen an individual sustains an injury arising out ofand in the course of his or her employment. Actionsfor intentional torts may be pursued outside of theworkers' compensation system if, for example, theemployer engages in conduct that cannot be considereda normal part of the employment relationship.

The exclusive remedy principle applies in Canada toinjuries that occur by accident in the course ofemployment or occupational diseases developing dueto the nature of the employment. There are limitedexceptions that differ from province to province. Forexample, in Ontario, a worker may have a cause ofaction against an employer other than his or her ownemployer, if the other employer has supplied a vehicle,machinery, or equipment without an operatorthat causes injury. An employer would face potentialliability in tort for any deliberate harm inflicted on aworker as such an event would not be considered an"accidentll •

The exclusive remedy provision is strong. If a courtwishes to allow a tort action against an employer (Le.,for sexual harassment), it will make findings that theinjury is not covered by workers' compensation.

The exclusive remedy provision exists, and is typicallyinterpreted quite broadly. There IS a recognizedexception in situations where an employerintentionally causes an injury.

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Delaware

District of Columbia

Florida

Georgia

Hawaii

Idaho

Employees in Delaware injured in the course andscope of their employment may only claim workers'compensation benefits from their employer, but mayalso bring a claim against a third party tortfeasor ifapplicable. The workers' compensation carrier or theemployer has a direct right of subrogation for any thirdparty recovery and may also bring a direct claimagainst the third party tortfeasor in subrogation if theemployee does not bring such a claim.

The District of Columbia Workers' Compensation Actprovides the exclusive remedy for an injuredemployee. There are recognized exceptions in caseswhere the employer fails to secure workers'compensation insurance, or when the employer hasspecific intent to injure or kill an employee.

Florida recognizes the exclusive remedy provIsIon,subject to certain exceptions. For example, a directtort action can be filed if the employer acts with intentto cause injury.

The exclusive remedy provision exists. Despite someactivity trying to circumvent this provision, there hasbeen little success in attempting to avoid exclusivity tobring a direct tort action.

The exclusive remedy doctrine applies. There is astatutory exception for sexual harassment or sexualassault and infliction of emotional distress or invasionof privacy related thereto. There must be a fmding ofsexual harassment or assault in order to prevail on theinfliction of emotional distress claim and avoid theexclusive remedy provision.

Idaho law provides that workers' compensation benefitsare the exclusive remedy against the employer forworkplace injuries. Idaho Code §72-223. In a February2007 opinion, the Idaho Supreme Court referred to

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Illinois

Indiana

Iowa

section 72-201, which "declares that all phases of the[common law system governing the remedy ofworkmen against employers for injuries] are withdrawnfrom private controversy) and sure and certainrelief for injured workmen and their families anddependents is hereby provided ... to the exclusion ofevery other remedy, ... and to that end all civil actionscivil causes of action for such personal injuries andall jurisdiction of the courts of the state over suchcauses are hereby abolished." It is unclear to the authorifthere is an "intentional tort" exception in Idaho.

There are notable exceptions to the general exclusiveremedy provision. For example, it does not bar tortactions for deliberately intentional conduct, casesarising under the dual capacity doctrine, or retaliatorydischarge actions.

In order to defeat the exclusive remedy provision, theemployee must show that the employer acted withdeliberate intent to inflict an injury, or with actualknowledge that an injury is certain to occur. Theemployer itself must harbor deliberate intent, notmerely a supervisor, manager, or foreman.

When an employee is injured and entitled to workers'compensation benefits, that employer is immune fromother liability for that injury. Even intentional tortsmay be outside the scope of remedies available underthe Act as the Iowa Supreme Court has held that theexclusive remedy provision bars claims against anemployer for intentional acts of supervisory personnelwhere those acts were not commanded or expresslyauthorized by the employer. Exclusivity precludesconsortium claims.

Injured workers can sue co-employees if they are"grossly negligent amounting to wanton neglect for thesafety of another." The injured worker must show that

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Kansas

Kentucky

Louisiana

Maine

the co-employee knew or should have known of theperil to be apprehended) and that the injury was aprobable, not just possible) result of the danger.Finally) the injured worker must show that the co­employee consciously failed to avoid the peril.

The exclusive remedy remains strong) with limitedexceptions in cases involving: 1) intentional acts bythe employer to injure or kill an employee; 2) the dualcapacity doctrine; and 3) retaliatory discharge.

According to K.R.S. § 342.690, workers)compensation is the exclusive remedy for workplaceinjuries. There are exceptions) such as cases where theinjury or death is caused by the willful and unprovokedphysical aggression of a co-employee.

The exclusive remedy provision in Louisiana remainsfairly strong. Statutory exceptions where tort suits canproceed against the employer include: 1) willful intentto injure; 2) intoxication; and 3) the physical aggressorin an unprovoked altercation.

The exclusive remedy provision applies in Maine) andhas been held applicable even in the case of anemployer's intentional conduct that leads to the deathof an employee. However, both the Maine SupremeCourt and the First Circuit have held that intentionaltorts that do not "arise out of and in the course ofemployment" will not be subject to the exclusivityprovision. As an example, if the employee hasconclusively established the work-relatedness of theinjury, the employer or insurer)s subsequentintentional conduct leading to the employee'semotional distress will not be covered by theexclusivity provision. As well, surveillance thatinvades the employee's expectation ofprivacy may notbe covered by the exclusivity provision and may leadto tort liability for the insurer.

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Maryland

Massachllsetts

Michigan

Minnesota

Mississippi

There are three primary exceptions to the exclusiveremedy provision. A separate tort action may beallowed if the employer fails to procure workers'compensation insurance, if there is deliberate intent bythe employer to injure or kill an employee, or ifexclusivity has been contractually bargained away.The exclusive remedy provision is challenged ratherinfrequently.

Exclusive remedy provlSlons remain solid, thoughthere are exceptions in cases involving intentionalinjuries resulting from serious and willful misconduct.In those exceptional cases there is a doubling ofcompensation benefits, both indemnity and medical,which, although payable by the insurer in the firstinstance, will ultimately be the responsibility of theemployer. The adjudication of these claims remainsunder the exclusive jurisdiction of the Department ofIndustrial Accidents.

The exclusive remedy provision applies. There arefew exceptions, such as cases where the injury resultedfrom an intentional tort and where the employee canprove a retaliatory discharge resulting from his .herexercising a right under the act. For an intentional tortto exists the employee must prove that the employerknew a dangerous condition exists and an injury iscertain to occur.

The exclusive remedy provision remains quite strongin Minnesota. A separate tort action may be pursuedunder limited circumstances, including situationswhere an intentional injury was inflicted by a co­employee.

Intentional acts of the employer (actual intent to injure,and not gross negligence) are exceptions to theexclusivity doctrine. If an employer fails to secure

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Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

payment of compensation, the employee may elect topursue workers' compensation remedies or file aseparate tort action against the employer for damages.In that type of action, the employer may not plead as adefense that the injury resulted from a co-worker'snegligence, contributory negligence, or anyassumption of the risk of employment.

Workers' compensation is the exclusive remedy for aninjured employee. Intentional injuries are anexception. For an injury to be considered intentional,the employer must act intentionally and withsubstantial certainty that injury will result. Theexclusive remedy provision does not apply insituations where co-workers or supervisors commitaffirmative acts of negligence that exceed theresponsibility to provide a safe workplace.

There are certain notable exceptions to the exclusiveremedy doctrine, including injuries that result from anintentional tort. Montana also recognizes the dualcapacity doctrine.

Based on §§ 48-111 and §§ 48-112, if an injury arisesout of and in the course of employment, the NebraskaWorkers' Compensation Act is the injured employee'sexclusive remedy against his or her employer.

Not available at press time.

Not available at press time.

The exclusive remedy provision is solid, and it isextremely difficult for an employee to maintain adirect lawsuit against the employer. In order toovercome the provision, there must be proof ofintentional harm, meaning that the employer must act"with substantial certainty of harm." Gross negligenceor disregard for safety is insufficient. Claims ofworkplace harassment against an employer are not

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New Mexico

New York

North Carolina

North Dakota

Ohio

barred because of the New Jersey Law againstDiscrimination.

Not available at press time.

The exclusive remedy provision remains quite strong,and efforts to pierce exclusivity have generally beenrare and unsuccessful. Statutory exceptions are casesinvolving intentional torts and failure to insure.

The exclusive remedy provision remains strong inNorth Carolina. There is a limited exception if theemployer is engaging in conduct that is substantiallycertain to result in death or serious bodily injury. Inaddition, an employee can sue a co-worker forintentional torts.

There is an exclusive remedy provision but there is anexception for intentional torts. The North DakotaCourt recently stated: "...the North Dakota Workers'Compensation Act does not preclude recovery for trueintentional injuries and an employee can pursue a civilcause of action against his employer for a trueintentional injury. An employer is deemed to have.intended to injure if the injury was certain to occur andwillfully disregarded that knowledge..."

There has been a large hole in the workers'compensation exclusive remedy doctrine in Ohio sincethe 1982 case of Blankenship v. Cincinnati Milicion(1982) 69 Ohio St. 2d 608, which held that "intentionalinjuries" occur outside the course and scope ofemployment, and, therefore, are not covered byworkers' compensation immunity. "Intentional injury"was later defined in Fyffe v. Jeno's, Inc. (1991) 59Ohio St. 3d 115 as working with a dangerous processor condition whereby injury or death was a"substantial certainty" to occur, together withemployer knowledge of the foregoing. Many Ohio

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Oklahoma

Oregon

Pennsylvania

Rhode Island

trial judges take a liberal view of the evidentiaryrecord on motions for summary judgment in suchcases, and find issues of fact calling for the jury todecide.

The State legislature has tried four times to reign inthis Ohio employer liability, but the first three attemptshave been found unconstitutional or otherwise invalidby the Ohio Supreme Court. The fourth such attempt,O.R.C. § 2725.01 (limiting a workplace intentionalinjury suit to a specific intent to injure), is currentlyunder review by the Ohio Supreme Court in Kiminskiv. Metal & Wire Products Co. A decision is expectedsometime in early 2009.

The exclusive remedy provisions exists with certainexceptions as described under 85 O.S. § 12

Oregon recognizes the exclusive remedy provlSlon,with an exception in cases where a worker is injureddue to the deliberate intent of the employer. There isan additional caveat evidenced by the case of Smothersv Gresham Transfer, 332 Or 83 (2001). In short, if aninjury is determined not to be the "major contributingcause" of a claimant's condition, the claimant can filea suit in civil court after losing his or her workers'compensation case. Id at 87.

There are exceptions to the general exclusivitydoctrine, such as instances where an employer isuninsured, an employee is alleging wrongfultermination or retaliatory discharge, or if the injury iscaused by the employer's intentional acts.

The exclusive remedy provision provides that benefitsunder the Workers' Compensation act are theexclusive remedy for an individual injured in thecourse ofhis or her employment.

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South Carolina

South Dakota

Tennessee

Texas

Utah

The exclusive remedy provIsIOn in strong in SouthCarolina. Specifically, the provision bars anemployee, his personal representative, and/or his next­of-kin, from suing the employer, a statutory employer,and/or co-employees conducting the employer'sbusiness, under common law. See S.C. CODE ANN §42-1-540. The employee may bring an action againstcertain third party tortfeasors. See S.C. CODE ANN §42-1-540.

The only recognized exception for the exclusiveremedy provision is for rights and remedies arisingfrom intentional tort. The intentional tort exception isquite strict. Only when the employee can show that anordinary, reasonable and prudent person would believean injury was substantially certain to result from theemployer's conduct can that worker bring suit againstthe employer at common law. There must be: (1)actual knowledge by the employer of the dangerouscondition; (2) substantial certainty that injury was tooccur; and (3) the employer still required the employeeto perform the task

The exclusive remedy provision exists. Pursuant toValencia v Freeland and Lemm Canst Co, 108 SW3d239 (Tenn 2003), there is an exception if the employerhas "actual intent" to injure the employee.

The exclusive remedy provision exists with certainexceptions. For example, if the employer intentionallycauses injury to the employee. In terms of definingintent, Texas adheres to the standard that an employermust at least be Hsubstantially certain" that its acts willresult in injury.

The exclusive remedy provision bars all tort actionsagainst an employer unless the case involves asituation with "intent to injure." Neither the statewrongful death statute nor violations of safety statutesor regulations supersede the exclusive remedy statute.

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Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

The exclusive remedy provision remains strong.Vermont does allow a separate tort action where astrict intentional harm standard can be met.

The exclusive remedy provision exists, even withrespect to intentional torts, if the injury arises out ofand in the course of the employment. However,victims of sexual assault have the option of electing topursue an action-at-law against the attacker, regardlessofwhether the attacker is the employer or co-employeeof the victim.

The exclusive remedy provision exists, with thecommon exception of cases where the employerdeliberately intends to injure an employee.

The exclusive remedy provision may be avoided if theemployer acts with deliberate intent to cause injury.

There are limited exceptions to the exclusive remedyprovision. A direct tort action may be pursued if theinjury resulted from use of an automobile not owned orleased by the employer, or if there is an intentionalassault and battery. Wisconsin also recognizes thedual persona doctrine - for example, if an employer isalso the manufacturer of the machine that causes aninjury.

There is an exclusive remedy provision in the law withan intentional tort exception.