PA Supreme Court Limits Carrier’s Ability to Initiate Third Party Claim on Behalf of a Claimant
Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. §671 provides Carrier and Employer absolute right of subrogation against third party recovery or award arising from the work injury.
The Pennsylvania Supreme Court in their Decision in Hartford v. Kamara No. 24 EAP 2017 decided November 21, 2018 has further limited Employer’s right to initiate suit against a third party on behalf of a Claimant.
The Appeal before the Court presented the issue of whether a Workers’ Compensation Insurance Carrier may bring a third-party action against an alleged tortfeasor on behalf of an injured employee to recoup the amount paid in Workers’ Compensation benefits where the Claimant did not independently sue the third party tortfeasor, did not join in the carrier’s action, and did not assign Claimant’s cause of action to the carrier. The Court reaffirmed the well settled proposition that the right of action against the third party tortfeasor remains with the injured Claimant. The Court held that unless the injured Claimant assigns the cause of action or voluntarily joins the litigation as a party plaintiff, the carrier may not enforce its statutory right to subrogation by filing a civil action directly against the third party tortfeasor.
This holding can be seen as permitting a carrier’s action against a third party defendant only where the Claimant has assigned the cause of action to the carrier or voluntarily joins that action as a party plaintiff.
As a practical matter, the Court’s Decision prohibits carriers from initiating civil actions involving a non-cooperative Claimant who refuses to assign his/her civil cause of action or refuses to be named as a party plaintiff.