When I get hurt at work and it is from a car wreck, truck accident or some other person or company injured me do I have two cases? Can I get two or three bites at the apple and get a double recovery? In Kansas, the answer to these questions is that in many circumstances a person who is injured at work due to a negligent act from a third person who is not their supervisor and is not their co-employee many times has a secondary case which is normally called a third-party claim. Sometimes you can get a secondary recovery, especially if you have an uninsured or underinsured motorist claim for a car or truck wreck when you have both a workers’ compensation claim and a third party claim for a motor vehicle accident.
Many lawyers fail to look for and identify the two separate and distinct cases that a workers’ compensation injury and accident can have. Many times, there is a completely separate and distinct secondary case which is capable of bringing a much greater monetary recovery for personal injury damages than the Workers’ Compensation case. Indeed, many workers’ compensation lawyers go after the Workers’ Compensation case first and in many instances kill the other case which is the third-party claim by filing the workers’ compensation claim. Over the years, I have had many cases that arose from an on-the-job injury where we helped on the Workers’ Compensation case or where we abandoned the Workers’ Compensation case and pursued only the personal injury third-party claim. Many of these results for the personal injury case are much more substantial than Worker’s Compensation payments.
In Kansas, the Workers’ Compensation Act has been modified over the last several years to such an extent that the benefits under it have been greatly reduced making it an unfair compensation system. Whenever you have an accident and there are other companies or outside non-employees involved, it is likely that we can turn that case into a much better monetary compensation recovery for you.
Several examples are set forth which are real examples of cases that I personally handled over the years where I was able to get a much greater monetary recovery for the client that was outside and away from the Workers’ Compensation case.
Example 1: A worker in the building industry was holding onto a concrete pump and hose while a different third party concrete truck driver from a different company operated a cement mixing truck. The operator of the cement mixing truck was smoking a cigarette and not paying attention and hit one of the shift knobs which raised the worker about 12 feet into the air and then dropped him. He had substantial injuries caused from the negligence of the operator of the concrete truck. I was able to get him substantial compensation for both his workers’ compensation case and for his case against the concrete company and its operator who are negligent.
Example 2: A worker was helping work on a new concrete airstrip at the Wichita Mid Continent Airport. During the installation of the cement work a portable electric trailer broke down. Another company with an electrician was called in to repair the electric trailer. Ultimately, the injured worker had a case for Workers’ Compensation claim and a secondary case against the electrician who made a faulty repair of the trailer. He was negligent in the way he repaired the electric panel inside the trailer. When the worker for the concrete repair went to turn on the electric power he was electrocuted. This case actually had to go to trial in Federal court on an issue regarding whether or not the electrician was a borrowed servant and the defendant argued that the electrician was directed by an on-site supervisor making him under the exercise of control of the main employer. If the right of control existed it would have likely barred the injured worker from seeking the second personal injury case. This would have only allowed the injured person to get a single recovery from Workers’ Compensation under the exclusive remedy doctrine in Kansas. This case was Corley v. Hardaway, 905 F. Supp. 923 (D. Kan. 1995).
On behalf of the injured worker we argued that he did not agree to lend himself to another employer and that the repair of the electric panel was done by a completely different business known as Wichita Electric. This Federal court analyzed whether Wichita Electric had the right to control the details of the repair work. At the time of this decision, the court was evaluating whether a person is a special employer in looking at the special employer test. The court determined that that there was no bright-line test for resolving whether an employer and an employee have an implied contract of special employment. The court found that a dispute of material fact existed regarding whether the injured employee had an implied contract with Wichita Electric and a jury was required to resolve that dispute to decide elements (b) and (c) of the Bendure test under, Bendure v. Great Lakes Pipeline Co., 199 Kan. 696, 701, 433 P.2d 558 (1967). Ultimately, after the court allowed the case to be bifurcated and proceeded to a jury trial the jury found that the Wichita Electric Company did not have a right of control over the injured worker and a secondary recovery was able to be received monetarily for the injured worker. The case did not have to go to the secondary jury trial on damages and settled shortly thereafter.
Example 3. In this particular instance the employee was an injured worker who was an independent contractor going to perform construction services at a house that was being built. Unbeknownst to the independent contractor, the painting independent contractors had covered a large hole in the floor with a painter’s tarp and placed large 5 gallon buckets all around the hole without placing any warning signs to tell any person who might walk across the tarp that there was no flow floor below tarp. Obviously, the independent contractor walked into the house and the tarp gave away and he fell approximately 12 feet shattering both legs. We were able to get a successful result for the injured worker that was much greater than the amount of the Workers’ Compensation benefits.
Example 4. We have had many injured workers who are operating a motor vehicle including a car, pickup or tractor-trailer and driving as part of their regular job for their employer where they are involved in a motor vehicle accident with another driver of a different vehicle who is at fault. In each of these cases we almost always have a manner in which we can get a much more substantial settlement for the injured worker from the third-party who caused the accident. In many instances, we can have a claim for uninsured and or underinsured motorist coverage against the insurance on the company vehicle in addition to what the other driver has for insurance.
Example 5. There are numerous cases in Kansas and other states where injured workers are working on a dock doing loading and shipping and some truck, commercial vehicle, semi, 18- wheeler or other large fleet vehicle will stop to make a delivery and back up and run over the dockworker. The dockworker will almost always have a separate case against the other driver and the company for the other driver who caused the injuries to the driver.
Example 6. I represented two injured workers who were hired in Kansas to work on a construction job out-of-state. These workers were up on a tall scaffold and a large mobile crane that was set up improperly tipped over causing the scaffold to fall, thereby severely injuring seven to eight men who were knocked off the scaffold. While all of these men had Workers’ Compensation cases, I took on two of the cases and we were successful in getting the court not to grant summary judgment and allowing the case to proceed to trial due to the different companies having no true right of control over the other company’s employees. The court did not decide that they were borrowed servants or employees. The case settled just immediately before it was set to go to trial for a substantial amount that gave the injured workers a much greater settlement for personal and bodily injuries than they would have otherwise received from their workers’ compensation cases.
There are many other examples of cases where injured workers have two bites at the apple and can bring a claim first for their workers’ compensation claim case and then secondarily for their claim that arises from some other third party’s negligence. These cases will many times involve the negligence of businesses and the employees and independent contractors that they hire. This leads into claims for negligent hiring, negligent training, negligent supervision, and if they keep the employee and do not retrain them after their employee has had other accidents, then it may provide a negligent retention claim.
Some states do not allow a secondary claim against an employer and their employee and worker if that company admits that they are working in the course and scope of employment at the time of the accident. If you have an accident in Kansas, our courts have abandoned and modified the rule that takes away the right to bring that secondary claim. In Kansas, each claim is a separate and distinct cause of action. The same rule does not apply in Missouri, but does in Kansas and is beneficial to any injured worker who has been injured due to the negligence and fault of a third person who is not their co-employee and not in control by the injured worker’s employer.
Some other states like Oklahoma and Missouri follow the McHaffie rule. This is the majority rule in many states, but it has been abandoned and distinguished in Kansas. In the McHaffie case the Missouri Supreme Court ruled that in an automobile accident it was improper to allow an injured plaintiff to proceed against their employer under the theory of negligent hiring when the employer had already admitted Respondeat Superior liability. See McHaffie, 891 S.W.2d at 827. The court reasoned that because negligent hiring is a form of imputed liability it means that the employer cannot be made more liable than the employee for the damages which were the result of the employee’s negligence. The court in that case concluded that allowing a plaintiff to proceed on another additional theory or liability where Respondeat Superior had been admitted, would allow a waste of judicial resources, would create confusion and it might allow the admissibility of potentially inflammatory evidence which would be irrelevant to prove a contested issue in the case. As stated above, luckily, for people that are injured in Kansas this rule is inapplicable in Kansas.
Jurisdictions like Kansas have found that an admission that the employee was acting within the scope of his or her employment does not preclude an action for both Respondeat Superior and negligent entrustment or for negligent hiring, negligent retention or for negligent supervision. In the case of Kansas State Bank and Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. at 362, 819 P.2d 587 the Kansas Supreme Court held that liability under a negligent hiring, retention or supervision claim results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The Kansas Supreme Court specifically held that because the torts of negligent hiring, retention, and supervision are recognized in Kansas as separate torts that are not derivative of the employees’ negligence, an admission that the employee was acting within the scope of his or her employment does not preclude an action for both Respondeat Superior and negligent entrustment or negligent hiring, retention, or supervision claims. This allows the injured plaintiff to bring separate and distinct causes of action. For example, one cause of action may be directly against the employer and its employee under the doctrines of vicarious liability and Respondeat Superior. Even when the defense admits that their employee was working in the course and scope of employment for the employer, it does not stop the injured plaintiff from bringing a secondary claim and even a third claim for each distinct cause of action. If the negligent employer did not follow the appropriate safety rules and performed negligent hiring that will provide the separate basis for one separate cause of action. If the negligent employer did not use appropriate safety training and supervision that may provide a separate cause of action. If the negligent employer had a bad employee who had multiple negligent prior acts at work and caused property damage or injured others before the new accident and they never retrained that employee and never put them back through safety training, it may provide another separate and distinct cause of action for negligent retention.
A leading case in Federal court in Kansas is the case of Patterson v. Dahlsten, 130 F. Supp. 2nd 1228 (D. Kan. 2000). This federal court decided that after the Kansas Supreme Court issued its ruling in the Marquis case in Kansas that Kansas would not follow the McHaffie rule. That case of Marquis v. State Farm, 265 Kan. 317, 318, 961 P.2d 1213, 1215 (1998) is enlightening.
In Marquis, the court noted that other jurisdictions, including Kansas, have found that an admission that the employee was acting within the scope of his or her employment does not preclude an action for both Respondeat Superior and negligent entrustment or negligent hiring, retention and negligent supervision causes of action. The court ruled that in Kansas, the torts of negligent hiring, retention, and supervision are torts which are “distinct from Respondeat Superior,” due to the fact that they are “not derivative of the employee’s negligence.” In a case similar to this set of fact, liability is not imputed, but instead runs directly from the employer to the injured person. Even when the employer admits that the employee was acting within the scope of his or her employment, the plaintiff may still bring an action for both Respondeat Superior and negligent entrustment or negligent hiring, retention or supervision. See Mart v. Dr. Pepper Co., 923 F. Supp. 1380, 1389 (D. Kan. 1996). This same case ruled “liability for negligent supervision and retention is not vicarious liability under the doctrine of Respondeat Superior, but is direct liability…” The Patterson v. Dahlsten holding found that the concession of Respondeat Superior liability does not preclude an injured plaintiff from proceeding on separate claims against a defendant for negligent hiring, training, negligent retention, and negligent supervision.
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