Superior Court Allows Workers' Compensation Carriers to Pursue Claims Against Third-Party Tortfeasors
The Pennsylvania Superior Court recently issued an Opinion in which it has permitted a workers’ compensation carrier to pursue a claim against a third-party tortfeasor by asserting the claim “on behalf of” the injured employee/claimant. The decision in The Hartford Ins. Group v. Kamara is available here. Kamara is distinguishable from the claim pursued by the carrier involved in the Pennsylvania Supreme Court’s recent decision in Liberty Mutual Ins. Co. v. Domtar Paper Co., as the claimant did not file suit against the third-party tortfeasor, was not named in the underlying action by Liberty Mutual and did not join in Liberty Mutual’s lawsuit in that action.
In a 2015 Opinion in the matter of Liberty Mutual Ins. Co. v. Domtar Paper Co., the Pennsylvania Supreme Court held that Section 319 of the Workers’ Compensation Act does not allow carriers the right to bring a direct cause of action against a third-party tortfeasor in order to pursue subrogation. Instead, a carrier’s right of subrogation under Section 319 must be achieved through a single action brought in the name of the injured employee or joined by the injured employee. Because the claimant did not file suit against the third-party tortfeasor and because the carrier did not name the claimant in the underlying third party action, the carrier’s action was dismissed.
The Domtar Paper Court left open the possibility that a carrier could pursue a viable cause of action against a third-party tortfeasor if a carrier initiated litigation “in the name of” or “on behalf of” a claimant. The carrier in Kamara did exactly that – specifically, it captioned its Complaint against the third-party tortfeasor as “The Hartford Insurance Group on behalf of [the claimant].” The Superior Court Panel found that because the carrier in this case captioned the Complaint “on behalf of” the claimant rather than “as subrogee of” the claimant, the carrier was permitted to continue to pursue its claims against the third-party tortfeasor. The Panel further distinguished Domtar Paper because the carrier in that case had attempted to pursue its own subrogation claim against the tortfeasor, instead of pursuing a recovery for the “full amount to which [the claimant] is entitled.”
The Kamara Court also held that a representative of the carrier could verify the Complaint “to the best of [his or her] information and belief.” The claimant was not required to provide a verification for the Complaint. The Superior Court vacated the trial court’s order sustaining the preliminary objections and remanded the matter to the trial court so that the carrier could continue to pursue its claim. The third-party tortfeasor has filed an Application for Reargument, which is currently pending before the Superior Court.
In light of the Superior Court’s decision in Kamara, it appears that carriers may now pursue a claim against a third-party tortfeasor “on behalf of claimant” if the claimant chooses not to do so on his or her own. Carriers should proceed with caution in following Kamara, as the case may be reviewed by the Superior Court, on reargument, or potentially by the Supreme Court.
In addition, any carrier that seeks to pursue such a third party claim “on behalf of” a claimant may encounter some difficulty in obtaining a recovery without the participation of the claimant. Each situation should be examined carefully to weigh the likelihood of success in the third-party tortfeasor action against the costs of pursuing the action.
For more information concerning the Superior Court’s decision, or if you have questions about a specific subrogation claim or potential third-party tortfeasor action, please contact any of the following of Post & Schell’s Workers’ Compensation attorneys:
- Workers’ Compensation Department Chair Jonathan C. Ascher at (412) 577-2982 or jascher@PostSchell.com
- Workers’ Compensation Principal Patrick R. Byrne in our Allentown Office at (610) 774-0326 or pbyrne@PostSchell.com
- Workers’ Compensation Principal Patrick T. Cusick in our Lancaster Office at (717) 391-4418 or pcusick@PostSchell.com
- Workers’ Compensation Principal Patrice A. Toland in our Philadelphia Office at (215) 587-1093 or ptoland@PostSchell.com
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author
Karyn Dobroskey Rienzi focuses her practice on post-trial and appellate matters, predominantly in the areas of workers’ compensation and casualty. She regularly appears before the Pennsylvania Workers’ Compensation Appeal Board and has argued before the Pennsylvania Commonwealth Court and the Pennsylvania Superior Court.