It was the Wisconsin Legislature to the rescue. On January 6, 2018, the Wisconsin Court of Appeals held that a temporary employee on loan to a special employer appeared to have an option of either filing a workers’ compensation claim or a third-party tort suit against the special employer. In Carlos Rivera v. Alpine Insulation and West Bend Mutual Ins. Co., 2018 WL 334447 (Wis. App. 2018), Rivera was working for Alex Drywall (general employer), a temporary help agency, but was assigned to work at and for Alpine Insulation (special employer). He was killed in a work-related car accident while a passenger in a vehicle owned by Alpine Insulation and driven by another temporary help employee obtained by Alpine through J.C. Staffing. Rivera’s estate opted not to file a workers’ compensation claim, but instead, filed a third-party tort action against Alpine and its driver. Alpine argued that, because Rivera was an employee of a temporary help agency, the estate was prohibited from bringing a tort action against Alpine — an employer that compensated Alex Drywall for Rivera’s services — under § 102.29(6)(b)1.
The Court of Appeals ruled that had Alpine been Rivera’s “general employer” at the time of his death, the Exclusive Remedy Rule would bar the estate’s suit. However, it allowed the suit against Alpine because it was a customer of a temporary help agency and a “special employer” at the time. It noted that § 102.29(6)(b)(1) stated that only an employee of a temporary help agency who “makes a claim for compensation” is barred from filing a third-party tort action against the special employer. Because Rivera’s beneficiaries opted not to file a worker’s compensation claim, they were not prohibited from suing Alpine. This decision, in the face of the general understanding of employer immunity, made perfect sense given the clear wording of Wisconsin’s Third-Party Liability Statute, § 102.29.
The Wisconsin Legislature wasted no time in coming to the rescue. On February 29, 2018, it amended § 102.29 in several places, clarifying that a leased or loaned employee who “has the right to make a claim for compensation” is barred from filing a third-party lawsuit. The law is effective as of March 2, 2018 and applies to workers’ compensation claims made or civil tort claims filed on or after that date.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.
