Is That Action Precluded By The Exclusive Remedy of Workers’ Compensation?

Author: Kathryn Besch

If the plaintiff was injured at work, how can they bring a lawsuit against me or my company? Many claims for injuries arising during the course of an employee’s work are not subject to civil litigation because workers’ compensation is the exclusive remedy available to an injured employee. However, there are exceptions to the general rule, a few of which are commonly the subject of civil litigation.

General Rule

As a general rule, employees who sustain an injuries “arising out of and in the course of the employment” are limited to recovery under the workers’ compensation system. Torres v. Parkhouse Tire Serv., Inc. (2001) 26 Cal. 4th 995, 1001. California Labor Code § 3600, sets forth the following conditions under which workers compensation is the exclusive remedy for injuries arising out of and in the course of employment:

  • The employer and employee and subject to workers’ compensation;
  • The employee is performing a service incidental to employment and acting within the scope of employment;
  • The injury is proximately caused by employment;
  • The injury is not caused by intoxication or unlawful use of a controlled substance by the injured employee;
  • The injury was not self-inflicted;
  • The employee did not willfully or deliberately cause their own death;
  • The injury did not arise out altercation in which the employee was the initial physical aggressor;
  • The injury was not caused by commission of a felony;
  • The injury did not arise out of voluntary participation in an off duty recreational activity; and
  • The claim is for an injury occurring prior to termination or layoff.

Common Exceptions

Many exceptions exist to the exclusive remedy of workers’ compensation, and the following instances are the most common grounds for civil litigation:

Intentional Act By Another Employee
An employee may bring a civil suit against another employee who causes injury by a “willful and unprovoked physical act of aggression.” (Jones v. Dep’t of Corr. & Rehab. (2007) 152 Cal. App. 4th 1367, 1383.) In such circumstances, claims against employers for negligent supervision and retention are also common. However, Labor Code Section 3601 “insulates the employer from common law vicarious liability to an employee for the acts of another employee.” (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 227.)

Products Liability
An employee may bring an action against an employer for products liability. Courts have determined workers’ compensation is not an exclusive remedy in products liability cases because an employer who manufactures, distributes or designs a defective product would otherwise be subject to a cause of action by the plaintiff if he was not an employee. (See Bell v. Indus. Vangas, Inc. (1981) 30 Cal. 3d 268, 279.)

Uninsured Employer
An employee may bring an action against an employer who does not have workers’ compensation coverage. In such cases, there is no workers’ compensation to provide to the employee, and an employee who is not provided the protections of workers’ compensation insurance cannot be limited to workers’ compensation as a remedy.

ABOUT THE AUTHOR: Kate Besch is a graduate of the University of Iowa College of Law. She specializes in general liability defense and business litigation. Contact Kate at 858.263.4115 or

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