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How to Distinguish between Serious
and Willful Misconduct
& 3rd Party
Liability Claims
By David L. Hart, Esq.
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David L. Hart represents
injured workers and plaintiffs in personal injury actions, wrongful
death claims, and employment related litigation.
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A prospective client who consults
you after suffering a work injury may have multiple claims. Two such
claims that should be carefully explored are 1) serious and willful
misconduct by employers and 2) claims against negligent third parties.
Before beginning analysis, it is important to understand the remedies
available under the different claims.
In a claim for serious and
willful misconduct, the compensation benefits increase by 50%. See
Labor Code 4553. In order to
prevail an employee must show:
- There was a violation of a safety
order.
- The violation of the safety order was the proximate cause
of the injury.
- The employer or the employer’s representative
(a particular named person) had knowledge of the dangerous condition,
or that the condition making the safety order applicable was
obvious, created a probability of serious injury, and that the
failure of the employer, or a representative designated by Section
4553, to correct the condition constituted a reckless disregard
for the probable consequences. See Labor
Code 4553.1.
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The standard of proof for serious
and willful misconduct is higher than a negligence claim. Accordingly,
an attorney should always be looking for third party negligence.
This is especially true when an employer’s conduct may have
been negligent, or even grossly negligent, but does not rise to the
level of serious and willful misconduct.
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See
the California Supreme Court decision in Mercer-Fraser
Co. v. IAC,
40 C2d 102, 18 CCC 3, 13 (1953): “It must be recognized at
the outset that the statute …does not make the employer
an insurer of safety and that it does not authorize the additional
award upon a showing of mere negligence, or even of gross negligence….’Wilful
misconduct' means something different from and more than negligence,
however gross, …..involving conduct of a quasi criminal
nature…”
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In a third party tort
liability case, an employee claims all damages available under tort
law including, but not limited to, wage loss, loss of future wages
and pain and suffering. A third party tort claim proceeds under general
tort law. County
of San Diego v Sanfax Corp. (1977) 19 Cal 3d 862. Under the
workers’ compensation
system, wage loss is limited to 104 weeks and capped out such that
a worker who earns more than around $77,000 per year in 2011 loses
money by being off work. There is no such limit in civil actions,
although there is a duty to mitigate damages. On the other hand,
in a tort claim there may be no or minimal insurance to pay for
the wrongful conduct.
In a claim for serious and willful misconduct, an employer will almost
assuredly have to pay any damages out of pocket, since an employer
cannot purchase insurance to cover such claims, except for the legal
defense. See Insurance Code §11661.
In third party tort claims, there is frequently an insurance policy
that covers negligence. It is also important to note that a claim
for serious and willful misconduct, like a claim for workers’ compensation
benefits, is against the employer. A claim for third party tort liability
is against anyone except the employer, with rare exceptions. A claim
for serious and willful misconduct must be made within a year of
the injury and a claim for negligence made within two years, unless
the claim is against a government entity.
Each case must be approached individually, but the following questions
can assist in beginning analysis:
- Was the injury caused in a building owned by the employer?
- Was the injury caused by tools that the employer owned?
- Was
the injury caused by tools that the employer maintained?
- Was
the injury caused by machinery maintained by the employer or
individuals employed by the employer?
- Was the person instructing the injured
employee employed by the same company?
- Was the employee injured
working in an area with employees and equipment from the same
employer? (This assumes that injury was not caused by a condition
in the premises.)
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Tort damages may be higher, but
there may be no or minimal insurance.
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If the answer to the above
questions was “yes”, the attorney should research safety
orders and explore a potential serious and willful misconduct claim.
On the other hand:
- Was the injury caused at a place where multiple
entities and individuals were performing work?
- Was the injury
caused by a newly purchased tool or a tool with a latent defect
that had been properly maintained?
- Was the employee injured
by a defective tool?
- Was the person instructing the injured
employee working for another person or entity?
- Was the injured
employee injured using tools that belong to a different employer
or someone working for a different employer?
- Was the employee
injured on machinery that was maintained by an outside contractor?
(Never assume that the employer that owns it always maintains
equipment. This is especially true for complex machinery and
assembly lines used in manufacturing.)
- Was the employee injured because another
person or entity had negligently built or designed the premises
owned by the employer?
- Was the employee injured by another driver
while driving as part of job duties?
- Was the employee injured
because of a dangerous condition that existed on the property
owned by a person other than his employer?
If the answers to the above
questions are “yes”,
than an attorney should explore a claim against a third party.
By always exploring every claim at the very beginning of the attorney-client
relationship, the attorney serves his client and maximizes recovery
for what are often life altering injuries (and at the same time
minimizes malpractice exposure). While it is easy to consider a
case on paper, when a working parent loses the ability to earn
a significant portion of their income whether for a finite period
or the rest of their life, the results can be devastating. The
best service an attorney can do to help a client through a very
difficult time is to maximize the recovery to best offset the effects
of the injury.
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