Workplace violence is an increasingly growing problem in the American workplace as well as in American workers’ compensation law. With more than two million incidents of workplace violence reported annually, the legal implications of such violence are being tested against the outer edges of workers’ compensation protections. In many of these incidents, the employer is able to invoke the long-standing Exclusive Remedy Rule as a shield against tort liability, even in scenarios involving fights between co-workers or grossly negligent acts. But what happens when the violence is intentional? Is the employer immune? And more importantly, can the workers’ compensation carrier seek reimbursement from a recovery obtained by the employee against the employer or a co-employee? These are the critical questions confronting subrogation professionals today.
The Exclusive Remedy Rule and Its Exceptions
Workers’ compensation is a grand bargain: employees give up the right to sue their employer in tort, and in exchange, employers provide no-fault compensation for injuries sustained during the course of employment. This “exclusive remedy” principle applies in every state, barring lawsuits against employers for negligence. However, nearly every state carves out exceptions for intentional acts. In 43 states, an employee may sue the employer where the harm resulted from an intentional act or gross misconduct. Louisiana legislatively adopted this exception in 1976 under La. R.S. § 23:1032. In Texas, the right to bring such a cause of action in death cases is protected under the state constitution and cannot be overridden by legislation.
State-Specific Approaches: Florida, California, and Wisconsin
Once the lawsuit proceeds and workers’ compensation benefits have been paid, a perplexing question arises: Can the employer’s insurer seek reimbursement from a recovery the employee obtains from that very same employer? On its face, this scenario seems absurd—an insurer seeking subrogation from its own insured. That’s where the Anti-Subrogation Rule comes into play. This doctrine prohibits an insurer from subrogating against its own insured, since it would be tantamount to suing itself. But some states have navigated around this doctrine by allowing subrogation in cases of employer intentional torts.
Florida, for instance, permits the workers’ compensation carrier to be reimbursed out of a tort recovery against the employer for intentional acts. In Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla. 2006), the Florida Supreme Court upheld a subrogation recovery from the employer despite the Anti-Subrogation Rule. California’s approach is even more nuanced. While generally adhering to the exclusive remedy rule, it allows enhanced benefits (a 50% increase) if an employee is injured due to the employer’s serious and willful misconduct. California Labor Code § 4553 provides that the amount payable to the employee may be increased, together with costs and expenses, not to exceed $250. These measures underscore California’s acknowledgment that employer misconduct should carry financial consequences.
Wisconsin provides an instructive case study in how intent is parsed. In Fetherstone v. Parks, 842 N.W.2d 481 (Wis. App. 2013), the Wisconsin Court of Appeals explained that for an “intentional act exclusion” to apply, both subjective intent (the actor’s state of mind) and objective certainty of harm must be proven. This high bar means that many acts which appear reckless or even malicious might not meet the legal definition of “intentional,” thus shielding employers from tort liability and their insurers from subrogation opportunities. The Fetherstone court emphasized the importance of policy wording: if an exclusion requires both subjective and objective intent, both must be proven, or the exclusion cannot be enforced.
Subrogating Against Co-Employees: A Separate Path
Adding another layer of complexity is the potential subrogation against co-employees. When a co-worker commits an intentional tort, the injured employee may have a viable cause of action, even in states with strict employer/co-employee immunity. The question then becomes whether the workers’ compensation carrier can enforce a lien against any recovery the employee obtains from that co-worker. In many jurisdictions, the answer is yes—particularly when the co-employee is not acting within the scope of employment or the act falls outside normal work-related functions. If a recovery is made, the carrier’s subrogation rights must be asserted under applicable state workers’ compensation subrogation statutes and case law to recoup benefits paid.
Strategic Considerations for Subrogation Professionals
From the subrogation professional’s perspective, the takeaway is both cautionary and opportunistic. It is critical to understand how each jurisdiction defines and treats intentional acts, especially when these acts open the door to otherwise barred lawsuits. In jurisdictions allowing tort claims for intentional injuries, the door to subrogation might be cracked open as well. But standing on the threshold is the Anti-Subrogation Rule—one of the most formidable doctrines in insurance law. Whether it slams the door shut or leaves it ajar depends on nuanced statutory and case law interpretations.
Subrogation against an employer for workplace violence may sound like a legal paradox, but it is far from theoretical. The rise in workplace violence—from mass shootings to targeted assaults—demands new thinking in how subrogation is approached. Insurance carriers should scrutinize claims for red flags indicating intentional conduct and must familiarize themselves with evolving case law. Proactive claims handling, immediate legal consultation, and state-specific knowledge can convert complex liability issues into recoverable assets.
Final Thoughts: Who Pays the Bill?
As courts and legislatures continue to balance the rights of injured workers with protections for employers, the law around workplace violence will remain in flux. Subrogation professionals, insurers, and defense counsel must remain vigilant. In a legal landscape where the assailant may wear the company logo, understanding how and when to recover what’s been paid becomes not just a legal question—but a moral one.
Because in the end, when fists fly and benefits flow, someone has to pay the bill. Subrogation just ensures it’s not the wrong party.
