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September 9, 2021

California is considered a tricky state when it comes to handling claims made by injured employees. That’s because California’s employee-friendly workers’ compensation system allows injured employees access to treatment and remedies without concern on who was at fault. In an article for Law360, Senior Counsel & Chair Saerim Luciano explains that there are ways for California or a workers’ compensation carrier to recover benefits through subrogation against third parties.

Luciano also points out that subrogation can be complicated when the workers’ compensation case is still ongoing, and especially when the third-party claim also asserts a loss of consortium claim by the injured worker’s spouse or partner.

“I have noticed an uptick in third-party injured worker lawsuits that have tacked on a loss of consortium claim,” said Luciano. She points out that a subrogor may not think twice about the claim. “However, at the time of mediation or settlement, a loss of consortium claimant can catch a subrogor off guard by demanding that it accepts less for its damages, given that there are more plaintiffs who need a cut of the settlement pie.”

In order for employers to obtain favorable outcomes, they must be prepared to actively intervene and litigate damages. This will put them in the optimal situation of recovering, thus removing the threat of any consortium claim losses.

Read the full Law360 article here (subscription required).


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