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Recognizing Third Party Personal Injury Suit

By Rajesh Kanuru, J.D. MBA

Whenever a person gets injured while on the job, the first thing that comes to their mind and to mind of their attorney is to file a workers’ compensation claim. What is often overlooked and missed is that while there is a workers’ compensation claim there is also the possibility of a third party personal injury suit1. The key issue, and what this article will address, is when may a personal injury suit be filed for the same injury.

The first thing one must know is that the employer normally cannot directly be sued for the unintentional injuries arising out of and in the course of the employment of the employee. The reasoning is that when the Workers’ Compensation Act was drafted the employer accepted absolute liability for injuries that arose out of and in the course of the employment in exchange for the employee giving up all statutory and common law rights of action against the employer. Furthermore, in Villa v. Arthur Rubloff & Company of Illinois, the Illinois Appellate Court ruled that the scope of section 5(a) provides that agents of the employer are also immune from a civil personal injury suit. The Workers’ Compensation Act also prevents non-dependent parents and siblings of an employee from maintaining a wrongful death action against the employer when the cause of action arose out of a compensable accident. This is true even though they are not entitled to any workers’ compensation benefits under the Workers’ Compensation Act2. Thus the first step in determining if there is a valid third party suit is to see whether the potential plaintiff and defendant are within the purview of the Workers’ Compensation Act.

While on the surface it might appear that an employee cannot file a personal injury suit for an on the job injury, there are certain circumstances under which the civil suit can be filed. The most obvious situations are the following.

  1. When the employee is involved in a motor vehicle accident while on the job with someone other than the co-employee and/or employee.

  2. When an injury is a result of a violation of the Illinois Commerce Commission rule, the statute provides a right of civil action that is not waived by the Workers’ Compensation Act.

  3. An on the job injury that is a result of an animal, the owner of the animal becomes liable. For example, anyone whose position requires them to make house calls.

  4. If a person is injured on the job due to a product defect, the employee still maintains a civil suit based on product liability.

While the above are the most obvious examples of when an employee has the option of filing a civil suit, there are also several less obvious examples of when a civil action remedy exists.

Intentional Torts

The first are intentional torts. A tort action may be filed against a co-employee for an intentional tort sustained in the course of employment. The requirement to file this tort is that the employee must prove that the co-employee acted deliberately and with specific intent to injure3. Furthermore, even though the employee acted intentionally to cause the injury this does not mean that the employer is automatically liable for the tort. To hold the employer liable for the tort, the employee must prove that the co-employee’s actions were authorized by the employer and that the employer acted with the intent to injure. If this cannot be proven then the employee’s actions are deemed to be accidental from the employer’s perspective and the employer is entitled to the protections offered through the Workers’ Compensation Act.

In a situation in which the actions of the co-employee were intentional but not authorized by the employer, the employee would file a workers’ compensation claim against the employer and a third party tort claim against the co-employee. This double filing would accomplish two things. First, it would allow the injured employee to be fully compensated for their injuries. Second, it would allow for the employer, through the subrogation provisions in the Workers’ Compensation Act, to be partially reimbursed.

Non-Compensable Workers’ Compensation Claim

A non-compensable worker’s comp claim can be filed as civil suit. The Illinois Supreme Court in Meerbrey v. Marshall Field & Co., held that if the injury is not compensable under the Workers’ Compensation Act, a civil action can be brought against the employer. The language in this case indicates that an employee may maintain a tort action when their worker’s compensation claim lacks merit.

Illegally Employed Minors

Illegally employed minors have the right to bring a civil action against their employers when they are injured during the course of employment. This right is exercisable within six months after the time of injury/death or within six months after the appointment of a legal representative, whichever shall be later. To exercise this right the employee or the legal representative must give the Commission notice that they are rejecting their rights to the benefits under the Workers’ Compensation Act. In addition, no payment of compensation under the Workers’ Compensation Act may be made to an illegally employed minor or his legal representative without the express approval of the Commission.

Second and Separate Legal Relationship

An employee also has a civil suit remedy when the employer maintains a second and separate legal relationship with the injured party, and that was the type of relationship at the time of the accident4. This rule has been extended to co-employees who occupy a relationship with the injured party that is separate and distinct from that of the work relationship creating liability under the dual capacity doctrine.5

One common area that this is seen in is with company doctors. In these situations, the protection does not extend to an employer hospital when the employee receives treatment at the direction of a non-company doctor6. The Workers’ Compensation Act also does not apply when an employee is negligently treated by the company health care facilities for a condition that is not work related.7

Retaliatory Discharge

Under Illinois law, it is illegal for an employer to terminate an employee for filing a workers’ compensation claim. If an employer does terminate an employee for that reason, the employee has the right to file a civil action. The necessary elements for this cause of action are three fold: (1) the plaintiff must be an employee of the defendant before the work-related injury, (2) the plaintiff’s must have exercised his rights under the Workers’ Compensation Act, and (3) it must be shown that the employee’s discharge was casually related to the filing of the workers’ compensation claim.8

The first issue in relation to this cause of action is to determine if the employee is covered by the Workers’ Compensation Act. In Illinois, not every worker is covered by the Workers’ Compensation Act. The two most common types of workers that are not protected by this act are farm workers who work on farms that did not have their employees work a cumulative total of 400 days. That is where all their farm employees, excluding family members, as a group worked more than 400 days. The second group is sole proprietors, partners, and members of a LLC whom elect not to provide and pay compensation for injures sustained by themselves.

The second element is that the employee had exercised his rights under the Workers’ Compensation Act. It is not enough that an employee has the right to file a claim, but instead he must have been in the process of pursuing remedies under the Workers’ Compensation Act. Furthermore, employees who testify at worker’s compensation trials of other employees can also file retaliatory discharge claims in civil court.

The third element of the retaliatory discharge tort is that the employee must be terminated9. The requirement for this is simply that the employee was involuntarily terminated. The one exception to this rule is with seasonal employees. This is because seasonal employees are hired with the intention of being employed for only part of the year, i.e. roofers.10

The most litigious aspect of this type of claim is the causation element. The causation element requires the plaintiff to show that the termination was in retaliation for the employee exercising their rights under the Workers’ Compensation Act. Thus the primary issue here is what was the employer’s motive in terminating the employee. Furthermore, the courts uniformly have held that the only testimony that may be used in this type of action are statements from people who have authority to discharge.11

In companies that have several layers of authority, one of the first questions to ask is what is the scope of the authority of the person or persons who fired the employee. This is because improper termination can also result when a supervisor’s supervisor terminates an employee. When one is considering the causation element one must also factor in the length of the time from when the employee took steps to exercise workers’ compensation rights and when he was terminated. A short time span tends to show retaliatory motive. On the other hand, a long time span does not automatically show the lack of retaliatory motive.12

The final element that must be shown is damages. While the same compensatory damages recoverable in general tort cases are also recoverable in retaliatory discharge cases; retaliatory discharge cases also allow for the recovery of punitive damages13. Punitive damages are allowed because they act as a deterrent against employers who want to interfere with employees’ workers’ compensation rights. The significance of this is that while compensatory damages are usually small, punitive damages can be high.

Unfortunately, an employee cannot recover claims for workers’ compensation benefits through the tort of retaliatory discharge. These benefits are recoverable only in proceedings before the Commission. But, a jury may take into account all TTD payments received by the employee.14

While all the above mentioned situations are not all the possible third party suits that can be filed by a worker’s compensation attorney, they are the most common. As it is evident, some are more easily apparent but not as compensable, while others are harder to prove but more compensable. The best thing to due if in doubt if a third party suit exists is to file a suit to protect the client’s potential right to a civil suit.




1 Villa v. Arthur Rubloff & Company of Illinois, 183 Ill. App. 3d 746 (Il. App. 1989); See Also: Forsythe v. Clark USA, Inc. 2005 Ill. App. Lexis 960 (Ill. App. 2005), Progress Printing Corp. v. Jane Byrne Political Committee, 235 Ill. App. 3d 292, (Ill. App. 1992)

2 Laird v. Baxter Health Care Corp., 272 Ill. App. 3d 280 (Ill. App. 1994). See Also: Stern v. Ritz Carlton Chicago, 299 Ill. App. 3d 674 (Ill. App. 1998); Lilly v. Marcal Rope & Rigging, 289 Ill. App. 3d 1105 (Il. App. 1997); Korczak v. Sedeman, 2004 U.S. Dist. Lexis 5981 (N.D. Ill. 2004).

3 Copass v. Illinois Power Co., 211 Ill. App 3d 205 (Ill. App. 1991). See Also: Wren v. Reddick Community Fire Protection District, 337 Ill. App. 3d 262 (Ill. App. 2002); Wells v. Enloe, 282 Ill. App. 3d 586 (Ill. App. 1996); Zurowska v. Berlin Industries, 282 Ill. App. 3d 540 (Ill. App. 1996); Hartline v. Celotex Corp., 272 Ill. App. 3d 952 (Ill. App. 1995). Bercaw v. Domino’s Pizza, 258 Ill. App. 3d 211, Ill. App. 1994).

4 Smith v. Metropolitan Sanitary District 77 Ill.2d 313 (Ill. App. 1979). See Also: Murcia v. Textron, 342 Ill. App. 3d 433 (Ill. App. 2003); Sobczak v. Flaska, 302 Ill. App. 3d 916 (Ill. App. 1998); Incandela v. Giannini, 250 Ill. App. 3d 23 (Il. App. 1993);

5 Oakes v. Gaines, 107 Ill.App.3d 212 (Ill. App. 1982). See Also: Kontos v. Boudros, 241 Ill. App. 3d 198 (Ill. App. 1993).

6 Dalton v. Community General Hospital, 275 Ill.App.3d 73 (Ill. App. 1995). See Also: Goins v. Mercy Center for Health Care Services, 281 Ill. App. 3d 480 (Ill. App. 1996).

7 Stewart v. County of Cook, 192 Ill.App.3d 848 (Ill. App. 1989). See Also: Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927 (Ill. App. 1999); Tosado v. Miller, 293 Ill. App. 3d 544 (Ill. App. 1997); Dever v. Simmons, 292 Ill. App. 3d 70 (Ill. App. 1997).

8 Groark v. Thorleif Larsen & Son, Inc., 231 Ill.App.3d 61 (Ill. App. 1992). See Also: Engstrom v. Provena Hospitals, 353 Ill. App. 3d 646 (Ill. App. 2004); Pietruszynski v. McClier Corp., 338 Ill. App. 3d 58 (Ill. App. 2003).

9 Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29 (Ill. App. 1994); Hartlein v. Illinois Power Co., 151 Ill.2d 142 (Ill. App. 1992); Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill.2d 526 (Ill. App. 1988).

10 Motsch v. Pine Roofing Co., 178 Ill.App.3d 169 (Ill. App. 1989), See Also: Hollowell v. Wilder Corp, 318 Ill. App. 3d 984 (Ill. App. 2001); Buckner v. Atlantic Plant Maintenance, 182 Ill. 2d 12, (Il. 1998); Zimmerman v. Buchheit of Sparta, 164 Ill. 2d 29 (Il. 1994).

11 Marin v. American Meat Packing Co., 204 Ill.App.3d 302 (Ill. App. 1990); Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, (7th Cir. 1994); Cannella v. Nationwide Carriers, Inc., 687 F.Supp. 362 (Ill. 1988); Mercil v. Federal Express Corp., 664 F.Supp. 315, (.Ill. 1987).

12 Netzel v. United Parcel Service, Inc., 181 Ill. App. 3d 808 (Ill. App. 1989),

13 Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (Il. 1978); Jackson v. Bunge Corp., 40 F.3d 239 (7th Cir. 1994)

14 Marin v. American Meat Packing Co., 204 Ill.App.3d 302 (Ill. App. 1990). See Also: Hartlein v. Illinois Power Co., 151 Ill. 2d 142 (Ill. 1992); Schmidt v. Ameritech Ill., 329 Ill. App. 3d 1020 (Ill. App. 2002); Paz v. Commonwealth Edison, 314 Ill. App. 3d 591 (Ill. App. 2000); Davis v. Times Mirror Magazines, 297 Ill. App. 3d 488 (Ill. App. 1998); Simon by & Through Simon v. Van Steenlandt, 278 Ill. App. 3d 1017 (Ill. App. 1996).


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