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Third Party Action with Workers Compensation

The Appellate Court recently decided a case involving the interplay between the Workers’ Compensation Act and joint liability in Ramirez v FCL Builders, Inc.
According to the Illinois Worker’s Compensation Act an employee cannot sue his or her employer for an injury. Instead, the employee must file a workers compensation claim. The Act says that there is no right to recover damages from the employer, so it is broadly drafted. 820 ILCS 305/5. However, courts have allowed suits by workers against third parties. Often, the third party will then sue the employer for negligence. Courts have allowed this.
To explain what I mean, if a worker, as part of his duties is driving a company vehicle and gets hit by a bad driver, the worker should have a workers’ compensation claim against his employer. The third party may argue the employer is at fault because the worker’s brakes did not function properly. If so, the third party should only pay for part of the loss and the employer should pay for part.
According to Illinois law, under the joint liability statute, the jury assesses fault against anyone whose fault is 25% or greater of the total fault which is attributable to the following people, the plaintiff, “the defendants sued by the plaintiff, and any third party defendants except plaintiff’s employer.” 735 ILCS 1117. The Supreme Court has decided that only defendants were sued by the plaintiff are to be included in the assessment. Ready v United/Goedecke Services, Inc., 232 Ill.2d 369 (2008)
In Ramirez v. FCL Buildings, Inc., the Plaintiff was hurt when he was trying to roll membranes manually. His employer did not allow him to use ATVs to push rolls of rubber. He hurt his back when he was pushing the roll. The worker said the metal was slippery. When plaintiff tried to hold the roll he felt his back crack. Plaintiff had two back surgeries after the incident. He sued the general contractor, FCL Builders Inc. His employer, the roofing company on the job, was not a party to the suit. The jury found for the Plaintiff and determined the proportionate fault under the joint tort liability statute to be:
Ramirez 20% Plaintiff (comparative fault)
FCL Builders, Inc. 40% General (Defendant)
Sullivan Roofing 40% Plaintiff’s Employer (subcontractor and not a party to suit.)
The defendant claimed that Sullivan Roofing, the plaintiff’s employer, should not have been included in the verdict form, because they were not a party. The trial court had allowed Sullivan Roofing to be on the verdict, over defendant FCL Builder’s Inc.’s objection. The appellate court agreed with defense that the court’s decision to allowing the entity who had not been sued to be on the verdict form is error. It held that only defendants “sued by the plaintiff” maybe on the verdict form.
The court based its decision on Ready. The Ready case holds that any defendant who settles prior to the verdict is not allowed to appear on the verdict. Accordingly, the plaintiff’s employer should not have been mentioned the jury verdict form.
The court, however, concluded that the error was not reversible. As FCL was the general, it would be responsible for any negligence of Sullivan, the plaintiff’s employer. Accordingly, a new trial was not needed. Instead, FCL Builders Inc. is responsible for all of the conduct less plaintiff’s comparative fault.
The court in this case got this right. Anyone who is a settling defendant was not named in the complaint is not permitted to be mentioned to the jury on the verdict form. The trial court should have been aware of problem.
At Ackerman Law Office we strive to represent injury victims, including workers who have claims against third parties and/or their employer. The initial discussion is and we take claims on a contingent fee, so you only pay fees if we win. We would love to help you.

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