Article
Fatal Work Injuries and the Third-Party Claim
Families are frequently told that workers compensation is the only remedy when a worker is killed on the job. That is often wrong, and the difference is usually very large.
By Rich Harris · Watch the video version
What workers compensation provides
Comp is a no-fault system. It pays a death benefit to dependents and a burial allowance, without anyone having to prove the employer did anything wrong.
It also pays nothing for the loss of the relationship, no compensation for the loss of a parent, a spouse or a child as such. The benefit is capped, and for a young worker with dependents it rarely approaches the actual loss.
The exclusive remedy rule, and what it does not cover
Comp is generally the exclusive remedy against the employer. It is not a shield for anyone else. A third-party wrongful death claim can be brought against any other party whose negligence contributed to the death, and it runs alongside the comp claim rather than replacing it.
- The driver of another vehicle, and that driver’s employer
- A general contractor, subcontractor or another trade on a multi-employer site
- The manufacturer of defective equipment, machinery or a vehicle component
- A property owner who failed to maintain safe premises
- A maintenance contractor whose work created the hazard
- A utility, or a supplier of a defective material
Where the exclusive remedy itself breaks down
- A power press injury where the employer removed a guard, under Labor Code section 4558
- A fraudulent concealment of the injury by the employer
- An employer acting in a dual capacity, such as also manufacturing the product
- An employer who was uninsured for workers compensation
- Conduct so egregious it falls outside the compensation bargain
Why the investigation has to start immediately
Cal/OSHA will investigate, and its findings are useful. But the agency is not building your civil case, and the scene will be cleared and returned to production long before its report issues.
Equipment gets repaired. Surveillance is overwritten. Contractors leave the site. A subcontractor’s insurance information becomes very hard to obtain once the job ends. The first two weeks matter more than any other period in the case.
The comp lien
Where comp benefits have been paid, the comp carrier will assert a lien against any third-party recovery. That lien is negotiable, and how it is handled materially affects what the family actually receives.
It should be planned for at the outset, not addressed as an afterthought at settlement.
Immigration status
A worker’s immigration status does not bar a wrongful death claim in California, and Labor Code section 1171.5 confirms that all protections apply regardless of status.
Families sometimes stay silent for years because they believe otherwise. They are wrong, and the belief costs them the claim.
This article is general information about California law, not legal advice about your situation, and it may not reflect the most recent changes. Speak with a lawyer about your own facts before acting.
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