Winning the Case That Appears Unwinnable: Part 1

Consider a case where an employee is horribly injured on the job (due in large part to the employee's own negligence) and his employer didn't carry worker's compensation insurance. Sounds like a tough case, doesn't it?

How about the case where the at-fault driver leaves the scene and is never found and the victim, who has significant injuries, did not purchase Uninsured Motorist coverage?

What about a case where the injuries, while huge, appear to be so remotely related to the motor vehicle accident that when the injured person's own insurance looked at the case, they insisted that they would never, never pay a single dime for any of the injuries? On receiving the insurance company's stern letter, the first attorney quit the case on the spot.

Do these cases sound like an impressive collection of very winnable cases? Upon first impression to the untrained eye, probably not. So, would it surprise you that each of these people ended up with substantial settlements or judgments? How? The answer: extensive problem-solving.

The next 3 articles will explore problem-solving that took these cases, that other law offices turned down as "dead on arrival," from losing cases to large recovery cases.

But, first, allow me a disclaimer. Unfortunately, some cases are truly unwinnable. Results are NEVER guaranteed. There is always substantial risk at trial. Some cases, despite our best effort, skill and ingenuity, just turn out unfavorably. This article is not about those cases. This article is about recent cases where we have found success even though the case appeared bleak at first glance.

An employee is horribly injured on the job (due in large part to the employee's own negligence) and his employer didn't carry worker's compensation insurance.

As a matter of background, when a worker is injured on the job, usually it does not matter if they caused their own injury. Reason being, if an employer is complying with the law, they are required to have worker's compensation insurance for their employee. But, in a couple of our recent cases, we have had injured people who were both very injured and largely at-fault for their injuries. Additionally, these folks were deprived of workers compensation benefits because their employer broke the law and didn't have workers compensation coverage for them.

The two cases that come to mind were both resoundingly rejected as valueless by several law firms before we had the chance to consider them.

What wasn't clear to these other law firms was the special penalties under our Colorado Workers Compensation statute, C.R.S. 8-41-101. This body of law states that an employer can be sued in a regular Colorado district court when the employer's "want of ordinary care" (negligence) results in an employee's injury IF AND ONLY IF the employer failed to carry workers' compensation insurance.

So, unlike the usual circumstances where an employer is immune from being sued, other than in Worker's Compensation court and only for the very limited worker's comp type recovery available under the laws, this frequently overlooked statute allows an injured employee to sue their employer for normal civil recovery damages (pain and suffering, loss of enjoyment of life, etc.) under this very unique set of circumstances.

In a case where an employee is the majority at fault for his own injury, would there be any point in suing an employer? After all, our normal civil damages limit a suing party to only recover against another negligent party for that party's level of negligence. In fact, normally, if the plaintiff is more than 50% responsible for his own injury, the plaintiff's damages are cut off and the plaintiff gets nothing.

However, C.R.S. 8-41-101 says something else that is often overlooked. The statute says IF the employer can be sued (when the employer had failed to secure worker's compensation coverage), the employer is NOT permitted to assert comparative negligence or negligence of others as affirmative defenses.

Okay, what does that mean? It means simply that the employer's negligence becomes the ONLY issue for the jury, and the jury will not be required to quantify the employer's negligence and weigh it against the employee's level of fault (even if the employee is 99% at fault for his own injury). Basically, if the jury thinks the employer is negligent at all, the employee wins. It is essentially a penalty for the employer breaking the law by not carrying worker's compensation insurance to protect his/her employees.

Accordingly, in this very unique type of district court action, it doesn't matter that the employee himself may have been the overwhelming cause of his own injuries. The only important issue is if the employer was even 1%, or perhaps only .0001% at fault. And if the jury determines fault on the part of the employer, the employer is 100% responsible for ALL losses, damages, medical expenses, permanent physical impairment, loss of enjoyment of life, and a number of other damages not allowed in Worker's Compensation court.

In the cases where we have recently scored huge recoveries under this unique set of circumstances, we were able to show that the employer was responsible for improper supervision or improper maintenance of their own equipment. In both circumstances, the defense collapsed when they saw the "writing on the wall" and that they simply had no defenses. They then engaged in extremely meaningful settlement talks to resolve the cases for huge financial recoveries for the injured employee and their families.

If you have been hurt on the job and have been told that you employer "does not have workers compensation insurance, so there is nothing you can do", don't give up. Call us at Anderson Hemmat and speak with one of our attorneys today and let us dig a little deeper.

In Part 2, we will explore another example of our problem-solving to win yet another "un-winnable case."