Violence in the workplace is a real concern. The Occupational Safety and Health Administration reports nearly 2 million workers report being victims of workplace violence each year. In some cases violence comes from a fellow employee. In other cases, it comes from dealing with a customer. And in still others, a shooting or other significant violence results in multiple injuries or fatalities.
Our Hayward injury lawyers know victims have significant rights in these situations. Some cases may result in a workers' compensation claim, while other cases may result in a personal injury or wrongful death claim for negligent security, premises liability, or negligent hiring and retention.
Insurer Not Liable for Employee Assault of Customer
It was a negligent hiring and retention claim that recently made its way to the Wisconsin Supreme Court.
Since the 1998 Wisconsin Supreme Court decision in Doyle v. Engelke, 219 Wis.2d 277, 580 N.W.2d 245, it has been assumed that a business' commercial general liability policy covered an employer who is sued for negligent hiring and supervision when an employee assaults someone on the job. However, a recent decision in Talley v. Mustafa, 381 Wis.2d 393, 911 N.W.2d 55, 2018 WI 47 is being seen as a partial victory for insurers.
In that case, a store employee intentionally punched a customer in the face. The customer secured a verdict against the store owner and a Court of Appeals decision used the Doyle Decision to find coverage. However, in a divided opinion, The Wisconsin Supreme Court reversed. The court did not cite the "intentional acts" exclusion of the commercial general liability policy, which only excluded acts of the store owner/policy holder. Rather, the court found there was no "occurrence," because occurrence was defined as an accident under the terms of the policy and the employee had acted deliberately.
Employees Can't Sue if Workers' Compensation is Available
In re Estate of Rivera v. West Bend Mutual Insurance, 2018 WI App 14, 380 Wis. 2d 138, 908 N.W.2d 486, the estate of a temporary worker brought a wrongful death lawsuit against his temporary employer after he was killed in a traffic collision at work.
It was a closely watched case because of the implications in third-party liability claims. While an employee covered by workers' compensation insurance is typically prohibited from bringing a tort claim against his employer, in this case the victim had been assigned by his employer to work for a third-party, or "temporary employer."
Section 102.29 of the Wisconsin Statutes states that a temporary employee cannot bring a tort claim if the employee claims workers' compensation benefits. The court ruled the employee (or his estate in this case) could bring the tort claim as long as no workers' compensation claim had been made. Unfortunately, lawmakers quickly moved to amend Section 102.29 to prohibit temporary employees from bringing such claims if they had a right to claim workers' compensation.
Employers continue to look for ways to cut costs. Using temporary workers, contract employees, and other means to avoid paying workers' compensation and other benefits continues to impact the health and safety of Wisconsin's workforce.
These cases illustrate the complexity of bringing a workplace injury claim or a claim of injury or wrongful death against a business for actions of an employee. An experienced Hayward workers' compensation lawyer or personal injury law firm should be consulted at the earliest stages of such cases.
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