Coworker Liability: A 60-Second Seminar in Workers’ Compensation Claims Handling

Allow us to begin today’s blog by asking three workers’ compensation trivia questions:

Q. 1: “What is the number one cause of death for men who die on the job?”          

Q. 2: “What is the number one cause of death for women who die at work?”        

Q. 3: “Where at work is the most likely place for an industrial injury to occur?”

You may have correctly answered that vehicle accidents are the number one cause of industrial death for men. However, we are willing to wager that you did not know the answers to the other two questions. Tragically, the number one cause of death for women who die on the job is murder! As for the most dangerous location at work, it’s not bathroom, nor the kitchen, nor the mail room. The answer is the parking lot. At the end of the workday, some parking lots are like the Indy 500 with cars zooming from all directions towards the exit. Unfortunately, every year many serious injuries occur in parking lots when vehicles crash into each other or strike employees walking to their car. Such accidents result in an interesting co-worker liability situation which is the focus of today’s blog.

When an accident occurs in the parking lot the injured worker is entitled to industrial benefits as the parking lot is an extension of the workplace. It does not matter if the employee previously punched out on the time clock because for workers’ compensation purposes, all employees are still considered working until they completely leave the premises, including the parking lot.  It also means the co-worker that caused the accident is likewise within the course and scope of employment at the time of injury. Therefore, when both employees are legally within the course and scope of employment, then per Labor Code §3601(c) the injured party’s remedy against the co-worker is limited exclusively to the workers’ compensation act. Consequently, an automobile liability insurance claim for bodily injury or a civil tort action against the co-worker who caused the accident is not allowed. 

Many auto liability insurance companies and their civil attorneys are unaware that bodily injury accidents occurring in the employer’s parking lot fall under the exclusive remedy of workers’ compensation.  All too often auto liability insurance companies will needlessly settle with an injured employee even though no liability exists under law. We are aware of two occasions where a large settlement was paid by the auto liability carrier to resolve claims filed by employees against co-workers. On both occasions, the workers’ compensation claims administrator intervened and sought subrogation. This too is not allowed.  It came as quite a shock to one company when the appellate court ruled the employer was not entitled to a subrogation recovery because the money paid to resolve the civil suit was never legally owed.  In addition, LC 3601 prohibits employer subrogation recovery against an employee for causing injury to a co-worker absent an exception in the law, such as intoxication or a deliberate assault (Coldwell Banker Realty v. WCAB, (1987) 52 CCC 485).

Without question, employees in the parking lot need to be protected against co-workers who drive recklessly and with wanton disregard for the safety of others.  When employers establish and enforce workplace safety rules, they must remember to include the parking lot as well.  For a list of parking lot safety tips please feel free to reach out to F+B for assistance.