Workers' Compensation
The Time that Remains
Today: Office Hours at 12pm, Faculty Lounge, Third Floor of Burns
Monday, November 17 - Alternatives to Tort
Wednesday, November 19 (Normal Class Time & Location) - Alternatives to Tort & Review
Friday, December 5 - (1:30pm Merrifield Hall) Optional Review Session & Office Hours
First party insurance
versus
Third party (liability) insurance
—
Insurance-related rules in tort suits
- Collateral source rule
- Subrogation
First Party Insurance for Plaintiffs
Can be straightforward: Defendant negligently burns down plaintiff’s home. Plaintiff is insured.
But it gets complicated with:
- Personal injury
- Settlement
Remember: The plaintiff and the plaintiff’s insurance company share the right to the plaintiff’s tort claim.
Liability Insurance for Defendants
How does liability insurance affect tort law?
- Changes how damages are paid.
- Changes what lawsuits are filed.
- Can affect substantive tort law itself.
- Can affect policy rationale / justification for legal rules.
Remember the Rowland Factors?
- foreseeability of harm
- certainty of plaintiff’s injury
- connection between defendant’s conduct and plaintiff’s injury
- moral blame
- policy of preventing harm
- burden to defendant
- consequences to community
- availability of liability insurance
Hypos on Impact of Insurance
First party insurance for dock owner plaintiff in Vincent v. Lake Erie Transport Co.
Liability insurance for recommendation writer defendants in Randi W. v. Muroc Joint Unified School District
Pavia v. State Farm
“Insurance Bad Faith”
Liability Insurance
- How does it affect what cases are litigated?
- How does it affect the consequences of liability?
Workers’ Compensation
Lamson v. American Axe & Tool Co.
“The Axe that Fell on the Employee”
—
[fit] The “Unholy Trinity” of Common Law Defenses
- Fellow servant rule
- Contributory negligence
- Assumption of risk
[fit] The Bargain of Workers’ Compensation
No fault
and
Exclusive remedy
Workers’ Compensation Requirements
Only compensates for work-related injuries
Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits
Employers must buy workers’ comp insurance
[fit] When would an employee not file a workers’ comp claim?
Injury wasn’t work-related
Injury resulted from employer’s intentional tort
Employee does not count as an employee
Revisiting Lamson v. American Axe
What does the plaintiff recover?
| Tort Law | Workers Comp | |
|---|---|---|
| Facts of actual case: | ||
| Without assumption of risk defense: |
—
Revisiting Lamson v. American Axe
What does the plaintiff recover?
| Tort Law | Workers Comp | |
|---|---|---|
| Facts of actual case: | Nothing | |
| Without assumption of risk defense: | Full recovery |
—
Revisiting Lamson v. American Axe
What does the plaintiff recover?
| Tort Law | Workers Comp | |
|---|---|---|
| Facts of actual case: | Nothing | Partial recovery |
| Without assumption of risk defense: | Full recovery | Partial recovery |
Third-party claims
Rule: Employee can file a workers’ compensation claim against their employer but workers compensation’ does not cover third parties.
Hypothetical: Gladys Escola is a waitress. While serving a Coca-Cola beverage at work, the bottle explodes in her hand, injuring her hand. She needs surgery and will be unable to work for months.
What’s your legal advice for her?
Big Picture: Workers’ Comp vs. Tort Law
Deterrence
Compensation
Administrative Cost
Equity
Ideology
Does tort law have an ideology?
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of Conduct | ??? | ??? ??? | ??? |
| Causal Connection | ??? ??? | ??? ??? | ??? ??? |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal Connection | ??? ??? | ??? ??? | ??? ??? |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | ??? |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) |