Third Party Lawsuits

If you or your property has been damaged, you may have cause to bring a lawsuit to remedy the damages you incurred. To do this, you may have to find an attorney to represent you and seek "remedies" for your injuries by bringing a lawsuit against the person or corporation or entity that caused the injury or damage. (It is very difficult to determine whether or not to bring a lawsuit without first consulting an attorney. It is even harder to pursue a lawsuit without an attorney.)

It is fairly uncommon for a worker to sue his or her employer for damages incurred at work; however, there may be other parties responsible in part or in full for your injuries and damages, and in these cases there may be grounds to bring suit for remedies. The information below explains the different legal approaches available in these types of situations, some of what to expect from them, and advice for finding an attorney to help you proceed with a legal action.

  • Third Party Lawsuits for Products Liability
  • Third Party Liability for Toxics
  • Other Third Party Lawsuits
  • The Difference in Remedies Between Workers’ Comp and a Third Party Lawsuit
  • Set Offs
  • The Legal Basis for OSH Remedies
  • Tort
  • Contract

 

Third Party Lawsuits for Products Liability

Assume, for example, you were injured as a result of a defective or dangerous machine. Perhaps a machine was not guarded and you lose or injure a limb. If the guard was never provided or provided as an option by the manufacturer, you can sue the manufacturer, seller and supplier of the unsafe or defective equipment if that caused your injury. What if you develop a disease like Reynaud’s Syndrome as a result of constantly using a jackhammer that vibrates excessively? If the product was unsafe, the manufacturer may be liable. In California, workers as well as consumers of products have a right to expect that the products they use are safe. The manufacturer may be negligent, not having tested the product to determine the extent of vibration, or perhaps they did test it and simply didn’t meet the industry standard. Or the manufacturer may know there is something unsafe, but they failed to warn you, the user, or failed to warn your employer, who purchased the item, and thus your employer was unable to provide you with proper training regarding the hazard . But even if they didn’t know it was unsafe and couldn’t know, they still may be liable if the product was in fact unsafe.

Third Party Liability for Toxics

The same rules apply to toxics in the work place. What if you are a health care worker who develops a latex allergy because of repeated exposure to latex gloves? Recent statistics show that between 8 and 17% of all health care workers (over 100,000) are already sensitized to latex. Many highly-trained health care professionals have been forced to leave their jobs because they have symptoms that range from hives and eczema to stuffy nose, red and itch eyes, swollen face, difficulty breathing, asthma and anaphylaxis. The more severe reactions can be life-threatening. These are immediate, systemic, allergic reactions to the proteins on the surface of gloves. The proteins are unwanted residues from the manufacturing process. The more you are exposed to proteins in latex gloves, the more likely you are to develop a latex allergy. If you are seriously injured, you can file a lawsuit against the glove manufacturers who produced vast quantities of defective, highly allergenic gloves and failed to warn their customers of the dangers of these gloves. If you work with asbestos or other toxics at work and get cancer or another serious injury from those exposures, you can also sue the manufacturers or suppliers of these harmful products because they too put these unsafe products on the market and failed to warn you or your employer. If the toxic is lead, there is an additional protection if your employer violates the Cal/OSHA lead regulation. You may be entitled to 18 months of medical removal protection (full pay and benefits and assignment to a lead free job) if you are exposed to a certain amount of lead and have a certain amount of lead in your blood. What if you carry lead home to your toddler, and she is lead poisoned and as a result has severe learning disabilities, never able to fulfill her potential? Not only might the manufacturer or supplier be liable, but if the employer was negligent or simply didn’t follow the Cal/OSHA regulations regarding lead contaminated clothing, the employer may be liable for the injuries to your child.

Other Third Party Lawsuits

What if a worker falls because he or she stepped on a header that was not properly secured, and it was the job of another contractor to secure it? Or what if a worker steps into a hole because the general contractor failed to provide proper lighting and it was still dark when the crew reported to
work? What if a worker falls from the perimeter where the cable has been removed by another contractor and the general contractor failed to conduct regular safety inspections per a contract or so as to meet the “industry standard”? In any of these situations, a worker may have a third party lawsuit for negligence.

The Difference in Remedies Between Workers’ Comp and a Third Party Lawsuit

Damages in workers’ compensation are limited, but not in a lawsuit against a third party. In a lawsuit you are entitled to the full amount of your past and future wage loss (including all benefits), and you are entitled to an amount to compensate you for your pain and suffering (not included in workers’ compensation). Both workers’ compensation and third party lawsuits provide for full compensation of past and future medical expenses, although there is often a considerable amount of haggling required for future medical care when you settle your workers’ comp case and keep your medical coverage open — and the workers’ comp insurance company will discount the amount of settlement if you refuse to settle out your future medical coverage because you were fearful you might run into expensive medical problems in the future.

Set Offs

In order to keep it fair, when you bring a third party lawsuit and the manufacturer or supplier or another contractor or the premises owner is liable, there may be a proceeding to determine what portion of the liability belongs to the third party and what portion, if any, to the employer. The employer may then offset the amount paid out to you in workers’ compensation benefits against the third party, assuming the employer did not contribute to your injury. This means the employer’s workers’ comp insurance company will probably be able to be reimbursed from any third party lawsuit verdict or settlement for the amount paid to you for workers’ compensation. So you have to keep all this in mind when you have both a workers’ comp case and a third party case. Be sure the lawyers coordinate. Also, keep in mind that third party lawsuits may be more difficult to pursue than workers’ compensation cases, which are handled in a “no-fault” system. If you have a good case, you should be able to find an attorney who will work on a contingency fee (you pay nothing unless there is a recovery). In contingency cases, the lawyer is willing to take on the risk of paying for the case preparation, including hiring expert witnesses, conducting investigation, discovery, etc. You will pay a portion of this ONLY IF there is a recovery. If a lawyer asks you to pay for these expenses up front, it may mean your case is not valuable enough for the lawyer to take the risk. In that case, it may not be worth it for you to front the money and pursue a third party lawsuit. Instead, you may want to rely on workers’ compensation alone. Finally, don’t forget you should always shop for an attorney! See How to Select an Attorney from our Guide to Workers' Health & Safety Rights & Filing a Cal/OSHA Complaint.

The Legal Basis for OSH Remedies

There are two common legal bases for OSH remedies: common law and statutes. Workers’ compensation is a state statute that provides workers with rights to remedies for work-related injuries or illnesses. The Americans with Disabilities Act is another statute that provides workers with certain rights, and in some cases, violation of those rights may provide cause for bringing a lawsuit to remedy damages caused by the violation of the statute.
Common law rights are rights that have been established over time and which are NOT linked to a statute or law passed by the legislature. There are basically two broad common law rights that an individual or group of individuals ("class") use if they or their property has been injured or damaged. These are called "tort actions" or "contract actions".

Tort

A tort is a private or civil wrong or injury. It is a violation (breach) of a duty imposed by some law or by what is reasonable. The person who has done something wrong must be shown to "owe" a duty to the other person. The other person must be harmed (injured) as a result of the breach of duty. And the action or inaction of the wrongdoer must have caused the harm. The damages are what comes from the harm and may include lost wages and benefits, medical care, a certain position at work, etc. There are a wide variety of damages depending on the wrong. A tort claim may be pursued independently from a contract violation. To bring a tort case (cause of action), there must be a legal duty owed by the defendant (person being sued) to the plaintiff (person bringing the suit), a breach of the duty, and damage as a proximate result of the breach.

Contract

A contract is an agreement between 2 or more competent people to create, modify or destroy a legal relation. The agreement is reached after an offer by one, an acceptance by the other and some legal consideration (often money). The minds of the parties must meet and concur (agree) as to the meaning of the terms or obligations (requirements) in the contract. If a party violates the contract and that violation leads to damages, then there is likely a legal basis to bring suit to remedy those damages.