Printed from

Worker can sue in third-party crash: Appeals court

Posted On: Oct. 31, 2019 12:51 PM CST


A hardware store worker in West Virginia who was seriously injured when he was hit by a company truck driven by a client can sue the store’s automobile insurer because the driver was not an employee and thus the workers compensation exclusive remedy did not apply, a federal appeals court ruled Wednesday.

Milton Hardware employee Greg Ball was injured in 2016 while unloading supplies at the home of Rodney Perry, who was given permission by the store owner to move another company vehicle in the driveway. As Mr. Perry was backing up, he accidentally hit Mr. Ball, temporarily pinning him between the truck Perry was driving and another Milton Hardware truck, causing Mr. Ball to be hospitalized, according to documents in United Financial Casualty Co. v. Greg Allen Ball and Milton Hardware LLC; Builders Discount LLC; Rodney Perry, filed in the 4th Circuit Court of Appeals in New Orleans.

At the time of the accident, Milton Hardware had a commercial automobile liability insurance policy issued by United Financial, which provided liability coverage to Milton Hardware and to any person using Milton Hardware's vehicles with its permission, however excluded injuries that fell within workers comp law. Yet Mr. Ball “demanded” that United Financial indemnify him for the injuries that he claimed were caused by Mr. Perry's negligence, according to documents.

United Financial denied coverage and filed a lawsuit against the store and those involved in the crash, asserting that coverage for Mr. Perry's liability to Mr. Ball was “barred by both the policy's Worker's Compensation exclusion and its Employee Indemnification and Employer's Liability exclusion,” documents states.

In vacating and remanding a district ruling that found that the workers comp exclusive remedy applied and that a third-party suit was not the appropriate remedy, the appeals court concluded in part that because Mr. Ball's negligence claim against Mr. Perry, a nonemployee, “was a claim against a third party, rather than a claim against his employer for workers' compensation, the Worker's Compensation exclusion did not apply,” the ruling states.