It's twelve-thirty on a Friday and your restaurant is packed. Your employees are hurrying to serve the lunchtime crowd as quickly as possible. Jill, one of your servers, is heading to the dining room with a fresh pot of coffee when she accidentally clips Beth, another server, with her elbow. The coffee pot flies out of Jill's hand and hot coffee spills down Beth's right leg. Beth sustains extensive second degree burns that require hospitalization.

Beth collects benefits from your workers compensation insurer. She then files a lawsuit against Jill. Beth's lawsuit contends that Jill mishandled the coffee pot and that her negligence caused the accident that resulted in Beth's injury. Can Beth sue Jill for a work-related injury?

Exclusive Remedy

Most states have enacted exclusive remedy laws that prohibit employees from suing other employees for work-related injuries. These laws dictate that employees must rely on workers compensation benefits as their exclusive remedy (sole source of compensation) for an injury sustained on the job.

Exclusive remedy laws are primarily intended to protect employers from lawsuits by injured employees. Employers that fulfill their obligation to purchase workers compensation coverage are (mostly) exempt from employee suits. However, the laws protect employees as well. Otherwise, injured workers could obtain duplicate compensation (workers compensation benefits and damages against a fellow employee).

Exceptions

While most employee-versus-employee suits are barred by workers compensation laws, there are some exceptions.

Supervisors and Officers

A few states allow injured employees to sue supervisors or executive officers under certain circumstances. Generally, a worker cannot file a suit alleging that the supervisor negligently failed to provide a safe workplace. The duty to provide a safe workplace falls on the employer and cannot be delegated to an employee. Rather, the injured worker must show that the supervisor owed the worker a personal duty of care and that the supervisor breached that duty. The worker must also prove that the breach of duty was the primary cause of his or her injury.

For example, Bob is injured on the job by a defective piece of machinery. Bob files a suit against his supervisor, Jeff, for bodily injury. Bob contends that Jeff was negligent because Jeff was aware that the machine was defective but ordered Bob to use it anyway. In the states that permit fellow employee suits, Bob might be permitted to sue Jeff.

Motor Vehicle Accidents

Some states permit suits between employees when one employee has been injured in a motor vehicle accident caused by another employee's negligence. For example, suppose that Sandy and Sue are employed by Ace Accounting. One day, Sandy and Sue are heading to a client's office in a car owned by their employer. Sandy is driving and Sue is her passenger. Sandy is rounding a curve when she loses control of the vehicle. The car hits a tree and Sue is injured. Sue collects benefits from her employer's workers compensation policy and then files a lawsuit against Sandy.

General Liability Policies

Suppose that Bob (in the previous example) is injured in a state that permits suits between employees. Will Jeff be covered for the suit under his employer's general liability policy? The answer is probably no. Most general liability policies contain a co-employee exclusion. This exclusion does not appear in the policy exclusions but in the section entitled Who Is An Insured. The co-employee exclusion is also referred to as the fellow employee exclusion.

Because of the co-employee exclusion, no employee is an insured with regard to bodily injury or personal and advertising injury to a co-employee if the latter is injured in the course of his or her employment. In other words, Employee A is not an insured if he or she is sued by Employee B for bodily injury or personal and advertising injury that Employee B sustained on the job.

Commercial Auto Policies

As noted above, some states permit employees to sue other employees for injuries sustained in auto accidents. Yet, employee drivers may have no coverage for such suits under their employer's commercial auto policy.

Most commercial auto policies contain a fellow employee exclusion similar to the one found in general liability policies. In auto policies this exclusion appears in the Exclusions section under auto liability coverage. It eliminates coverage for bodily injury sustained on the job by any fellow employee of an insured worker.

Removal of Fellow Employee Exclusions

Coverage for fellow employee suits is important if your state permits such suits. Insurers may be willing to remove the fellow employee exclusions found in the general liability and commercial auto policies for a small additional premium. Some insurers cover fellow employee suits as a coverage enhancement. This coverage may be added to a liability or auto policy via an endorsement.