Felonious Assault Case Filed Against the Plaintiff´s Employer*

The plaintiff Nikki Whiteman is seeking damages for injuries sustained as a result of employment discrimination, sexual harassment, and felonious assault.

In October 2004, the parties reached agreement on the terms of a settlement. Whiteman did not sign the settlement because Fata Insurance Company (Fata), the workers'compensation insurance carrier for The Crash Box Factory, placed a lien against the settlement proceeds.

Whiteman launched an action to determine Fata's rights and also asks for summary judgment that Fata is not entitled to a lien on the settlement proceeds for this felonious assault case.

The court said that under Workers' Compensation Law, an injured employee has the right to bring a third-party action while receiving workers' compensation benefits.

That section reads: "if an employee entitled to compensation ... be injured or killed by the negligence or wrong of another not in the same employ, the insurance carrier liable for the payment of such compensation shall have a lien on the proceeds."

The purpose of the lien is to allow injured employees to collect workers' compensation immediately after injury, while providing a mechanism to prevent double recovery in the event of a settlement from a third-party wrongdoer.

Workers' Compensation Law does not broadly authorize liens etc. to be applied against all or any recoveries from others without regard for their source. They authorize application of the lien only against recoveries from the third-party wrongdoers who are responsible for the claimant's injuries.

The law explicitly limits its application to those "not in the same employ," meaning the statute has a clear intent to exclude employers.

The plaintiff complained of sexual harassment and felonious assault by her supervisor, as well as retaliatory discrimination by her employer, The Crash Box Factory.

The Plaintiff Whiteman was awarded workers' compensation benefits for work-related injuries resulting from the sexual harassment and felonious assault, and she also commenced this action.

It is not disputed that Whiteman's allegations of sexual harassment and felonious assault are intentional torts, entitling her to bring an action against her employer.

The only issue here is whether this assault case is a third-party action subject to the lien provisions of Workers' Compensation Law. The court finds that this is not a third-party action for purposes of Workers' Compensation Law.

The plaintiff Whiteman and the defendant manager worked for the same company at the time that the harassment and felonious assault occurred and were therefore in the "same employ."

This case is unusual because the defendants did not, when the question of entitlement to a lien should have been raised, pursue the issue. They raised the issue of the plaintiff's receipt of workers' compensation benefits as a bar to a suit against her employer but chose to settle the case and withdraw the motion.

The plaintiff's motion is granted. Fata, the workers´ compensation insurer, is not entitled to a lien on the settlement proceeds for this felonious assault case.