Hon. Ted E. Wedemeyer Jr.
A municipal employee who receives workers compensation benefits may also file suit against a co-worker when the municipality is obligated to pay judgments against that co-worker pursuant to a collective bargaining agreement or a local ordinance, the Wisconsin Court of Appeals held on Sept. 23.
On Aug. 31, 2000, Christopher Keller was driving his personal automobile while on duty as a firefighter with the Milwaukee Fire Department, and while acting within the scope of his employment.
At the same time, James R. Kraft, who was on duty as a Milwaukee Police officer, was driving a Milwaukee Police Department vehicle. The two vehicles collided, allegedly as the result of Krafts negligence. Keller received workers compensation benefits from the City of Milwaukee.
Nevertheless, Keller brought suit against Kraft and the City to seeking compensation for personal injuries. Kraft and the City answered that the workers compensation law was the exclusive remedy for any injuries resulting from the accident. Both parties moved for summary judgment, and Milwaukee County Circuit Court Judge Dennis P. Moroney ruled in favor of the city, and dismissed the complaint.
Keller appealed, and the court of appeals reversed in a decision by Judge Ted Wedemeyer.
Section 102.03(2) provides: Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the workers compensation insurance carrier. This section does not limit the right of an employee to bring action against any coemployee for an assault intended to cause bodily harm, or against a coemployee for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance. (emphasis added).
Section 895.46(1)(a) provides: If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency.
What the court held
Case: Christopher J. Keller v. James R. Kraft, No. 02-3377.
Issue: Can a government employee who receives worker’s compensation benefits also file suit against a co-employee when a governmental unit is obligated to pay judgments against that employee pursuant to a local ordinance?
Holding: Yes. The third exception to the exclusive remedy provisions of the worker’s compensation law permit such a suit.
Counsel: Brian J. Henderson, Milwaukee, for appellant; Michael G. Tobin, Milwaukee, for respondent.
Milwaukee has an ordinance that provides, Liability When Sued in Official Capacity. No officer of any city, no matter how organized, shall be required to file an undertaking, or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of quo warranto or any other kind of action involving directly the title to his office, nor shall any city officer be liable for any costs or damages, but cost or damages, if any, shall be awarded against the city. Milwaukee Ordinances, sec. 3-23.
At issue was the third exc
eption to the exclusive remedy provisions of the workers compensation law, emphasized in italics above.
The City argued the exception does not apply, because the local ordinance was enacted solely to reflect the public employee indemnification requirement of sec. 895.46. The city claimed that the ordinance does not waive the exclusive remedy provision, and that the purpose is to protect city officers from lawsuits, not to encourage fellow employees to sue each other.
The court rejected the argument, however, citing legislative history. The court noted that, prior to 1978, the workers compensation law did not preclude suits against co-employees, but only against employers.
The legislative history to the amendment precluding suits against employees contained an explanation for the third exception, which the court quoted as follows: A proposed amendment also permits suits against a co-employe where there is liability of a governmental unit to pay judgments against employes under the provisions of Wisconsin Statutes 895.46 or under collective bargaining agreement or ordinance. Public employe unions felt strongly that in many cases they had earned the right to have the judgments paid under collective bargaining agreements and should not be deprived of the benefit of their bargain. The Workers Compensation Advisory Council was also aware of the fact that the Legislative Council has introduced a bill which would eliminate the liability of the government unit to pay judgments against a co-employe where the person suing was entitled to benefits under the Workers Compensation Act. The Workers Compensation Advisory Council felt that this was a policy matter for determination by the Legislature with which it should not interfere.
The court further found that the legislature considered, but rejected the following amendment which would have eliminated the indemnification requirement when workers compensation benefits have been received: The state or political subdivision shall not be required to pay the judgment against the officer or employe if the acts complained of were committed against a coemploye and the state or political subdivision is liable for benefits to the coemploye under ch. 102.
The court concluded, Having reviewed the plain language, together with the aforementioned documents, we conclude that the third exception at issue here is unambiguous. An employee who receives workers compensation benefits may also file suit against a co-employee when a governmental unit is obligated to pay judgments against that employee pursuant to a collective bargaining agreement or a local ordinance.
The court concluded that the co-employee claim is not barred by the exclusive remedy provisions of the workers compensation law. The court determined, the facts here fall squarely into the third co-employee exception, which permits a suit against co-employee Kraft because section 3-23 of the Milwaukee City Charter is an ordinance providing for payment of any judgment against Kraft.
Accordingly, the court reversed.
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David Ziemer can be reached by email.