The workers’ compensation system only bars lawsuits against an employer or coworker. It does not bar lawsuits against a third-party entity that causes an injury. Such third-party lawsuits may arise in several different ways.
General Third-Party Liability. Third-party liability may arise against an entity that itself causes the worker to suffer an injury. A subcontractor employee may injure a worker. A negligent driver may collide with a road-based worker. An improperly designed product may cause a worker to suffer an injury. A worker injured by such an entity is entitled to file a lawsuit against that entity.
General Contractor Liability. A third-party lawsuit may also exist against a general contractor. General contractors owe a non-delegable duty to employees, including subcontractor employees, to comply with—or ensure compliance with—Washington State Industrial Safety and Health Act (WISHA) safety regulations. A worker injured by WISHA violations on a job site is entitled to file a lawsuit against a general contractor that failed in its obligation.
Job Site Owner/Controller Liability. Unlike general contractors, job site owners are generally not responsible for the acts of hired contractors. However, an exception exists where a job site owner retains the right to direct the manner in which a contractor performs its work. To the extent the job site owner retains such control, it has a duty within the scope of that control to supply a safe workplace and ensure compliance with WISHA regulations. An injured worker will be entitled to pursue a lawsuit against a job site owner if it fails in its obligations.
Lawsuit Against Employer for Intentional Injury
While an employee is generally barred from suing an employer, there is an exception. An injured worker may sue an employer if the employer intentionally injures the employee. Courts have stated that an employer intentionally injures a worker when “the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.” A subjective intent to injure a worker is not required.
Assignment of Lawsuit
When a third-party entity injures a worker, the worker is required to inform L&I or a self-insured employer of whether the worker “elects” to pursue a lawsuit. If the injured worker elects to not file a lawsuit—or does not timely respond to a request to make such an election—the lawsuit will be deemed assigned to L&I or the self-insured employer. L&I or the self-insured employer will then be allowed to file the lawsuit against the third-party entity in the injured worker’s name.