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Insurer cannot sue third party without injured worker’s participation

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The Pennsylvania Supreme Court ruled Wednesday that an insurer cannot sue a third party it feels is responsible for a worker’s injury unless the worker assigns her cause of action or joins the lawsuit as a plaintiff.

In October 2013, Chunli Chen was standing in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle driven by Kafumba Kamara. Ms. Chen, who was working for Reliance Sourcing Inc. at the time, suffered injuries to her head, back and neck. 

Reliance Sourcing’s insurer, Hartford Insurance Group, paid $59,424.71 in medical and wage benefits to Ms. Chen via her company’s workers comp coverage, according to documents in The Hartford Insurance Group on behalf of Chunli Chen v. Kafumba Kamara, Thrifty Car Rental and Rental Car Finance Group, filed in Philadelphia.

Ms. Chen did not seek to recover damages for her injuries by filing a third-party action against the driver at fault, Kamara, nor Thrifty Rental Car. However, in late 2015, just as the two-year statute of limitations was about to expire on Ms. Chen's accident, the insurer sought to sue the responsible parties for damages, documents state.

The complaint contained two negligence counts, which asserted that each of the defendants was liable to The Hartford and to Ms. Chen for her injuries. The complaint was not verified by Chen, documents state.

The defendants filed preliminary objections to the complaint as a demurrer, claiming that the complaint should be dismissed in part because Ms. Chen was not a party to insurer's action and that the insurer had “no independent ability to commence a subrogation claim directly against them.” That Ms. Chen did not sign the verification was also a factor in the motion to dismiss, records state.

In response, the Hartford contended it complied with state requirements that the action against the tortfeasor be brought "in the name of the injured employee" because it captioned its complaint as being filed "on behalf of" Chen, rather than as ‘the subrogee’” of Chen, records state.

In 2016, a trial court issued an order sustaining both the preliminary objections and dismissed the insurer's complaint with prejudice. The state Superior Court in 2017 vacated that decision and remanded the suit for further proceedings, finding error in the lower court ruling, in part stating that the insurer complied with laws on bringing action against a responsible party in the name of the injured worker, records state.

With two judges writing dissenting opinions in line with the Superior Court ruling, four judges agreed with the earlier trial ruling that dismissed the suit. “Under these circumstances, we find it apparent that sanctioning a workers' compensation carrier to pursue litigation of the injured employee merely by captioning the complaint as "on behalf of" the employee and including a bald assertion seeking any recovery due the employee, contravenes the very jurisprudence establishing that it is the injured worker who retains the cause of action against the tortfeasor,” the opinion states.

Officials with The Hartford could not immediately be reached for comment.