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THIRD PARTY CASES

“Third party cases” generally are those cases against parties other than the employer, where workers' compensation is not the exclusive remedy. Labor Code §3602 provides in subsection (a):

“Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.”

Labor Code §3852 allows both the employee and the employer a “claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer.”

Labor Code §3601 provides that an employee cannot sue another employee acting within the scope of his or her employment for injury or death, except (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee or (2) When the injury or death is proximately caused by the intoxication of the other employee.

See, too: Subrogation, Credit, and Civil Suit Against Employer

Label Item Links Comments
Labor Code Exclusive remedy rule and when an employee can sue the employer

Right of employee or employer to sue a third party

Right to sue co-employee

LC §3602


LC §3852

LC §3601

  Labor Code §3853: If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail....
LC §3853
 
Regulations/Rules  
Cases In Nichols v. Keller (1993) 15 CA.4th 1672, the injured worker brough a legal malpractice action against his workers' compensation lawyer for failure to file a civil suit. The Court of Appeals opined: “ It seems to us the foreseeability factor compels a finding of duty in cases of this type. A trained attorney is more qualified to recognize and analyze legal needs than a lay client, and, at least in part, this is the reason a party seeks out and retains an attorney to represent and advise him or her in legal matters.” Nichols v. Keller It takes a few minutes to put in writing advice to consult a civil litigation attorney without delay, if you do not do third party cases. It can save many hours and huge expense.
Forms      
Websites    
Practice Tips The applicant's workers' compensation attorney has a duty to determine if there is a third party case, and the defense attorney has a duty to advise his or her client about third-party issues (see Subrogation and Credit). Make sure any fee agreement limits involvement to workers' compensation representation if you are not doing the third party case. The WC attorney should also send a letter to the client advising that attorney is not filing a civil suit, the statute of limitations, referral to a bar association referral service, etc. This is also generally required by malpractice insurers.    
Magazine Articles How to Distinguish between Serious and Willful Misconduct & 3rd Party Liability Claims by David L. Hart. Esq.

Credit in Third-Party Cases: How to Coordinate the Civil and WC Cases: Interview with James G. Butler, Esq.
Third Party or S&W?



Butler on credit
 
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