When Can You Sue Outside Workers’ Comp in California?

If you were injured at work in California, workers’ compensation may provide benefits for medical treatment, temporary disability, permanent disability, and other losses related to the injury. But a workers’ compensation claim does not always tell the whole story.

In some cases, an injured worker may also have a separate personal injury claim against someone other than the employer.

California Labor Code section 3852 specifically preserves an injured employee’s right to pursue damages against a responsible third party. That means a worker may sometimes receive workers’ compensation benefits while also pursuing a civil claim against a negligent driver, contractor, property owner, equipment company, manufacturer, or another outside party.

This distinction can be important because a third-party personal injury case may provide compensation that workers’ compensation does not, including damages for pain and suffering and other proven economic and non-economic losses.

At Anderson Franco Law, we look closely at workplace accidents to determine whether the injury involves only workers’ compensation or whether someone outside the employer-employee relationship may also be legally responsible.

When Can You Sue Outside Workers’ Compensation in California?

The most common situation is straightforward: you may be able to sue outside workers’ compensation when someone other than your employer caused or contributed to your injury.

Examples may include:

• another driver who caused a crash while you were working
• another company or subcontractor whose employees created a dangerous condition
• an outside company that negligently operated equipment
• a property owner or business responsible for dangerous premises, depending on the circumstances
• a manufacturer, distributor, or seller responsible for defective equipment or products
• a maintenance, delivery, transportation, or equipment company whose negligence caused the accident

These are generally referred to as third-party work injury claims.

Workers’ compensation and a third-party personal injury case are separate legal claims. In the right case, both may exist at the same time.

The General Rule: Workers’ Compensation Is Usually the Remedy Against Your Employer

California’s workers’ compensation system generally prevents an employee from filing an ordinary negligence lawsuit against the employer for an injury covered by workers’ compensation.

This is known as the exclusive remedy rule.

Labor Code section 3602 provides that, when the statutory conditions for workers’ compensation apply, workers’ compensation is generally the employee’s sole remedy against the employer unless a specific statutory exception applies.

For example, an employee generally cannot turn an ordinary workplace accident into a civil negligence lawsuit against the employer merely because:

• the employer failed to provide adequate training
• a supervisor made a mistake
• the workplace was disorganized
• a co-worker carelessly caused an accident
• an employee injured a back while lifting
• the job caused a repetitive-use injury
• the employer could have implemented safer procedures

Those circumstances may support a workers’ compensation claim, but they do not automatically create a separate personal injury lawsuit against the employer.

The key question is often whether someone other than the employer bears legal responsibility.

Third-Party Work Injury Claims

A third-party claim is a personal injury claim against a person or company outside the employment relationship.

California law expressly recognizes that receiving workers’ compensation does not eliminate an employee’s claim against another legally responsible person. Labor Code section 3852 permits an employee to pursue damages against someone other than the employer.

This is often the most important issue to investigate after a serious workplace injury.

A worker may initially believe, “I was injured at work, so this is a workers’ comp case.”

That may be true—but it may not be the only case.

Car Accidents While You Are Working

Vehicle crashes are one of the clearest examples.

Suppose you are:

• making deliveries
• traveling between job sites
• driving a company vehicle
• visiting a customer
• transporting tools or materials
• performing another work-related assignment

and another driver causes a collision.

You may have a workers’ compensation claim because you were injured while working. But you may also have a separate personal injury claim against the driver who caused the crash.

The civil claim may also involve additional defendants. For example, if the negligent driver was working for another company at the time, that company may potentially be responsible depending on the circumstances.

The fact that you were working when the crash happened does not excuse an unrelated driver from responsibility for causing it.

Construction Accidents Can Involve Multiple Legal Claims

Construction injuries are among the workplace cases that deserve particularly careful investigation.

A construction project may involve:

• the injured worker’s employer
• a general contractor
• several subcontractors
• the property owner
• equipment suppliers
• rental companies
• trucking and delivery companies
• equipment operators
• maintenance companies
• product manufacturers

An injured worker may be employed by only one of those companies.

If another company independently caused the accident, a third-party personal injury case may exist in addition to workers’ compensation.

For example, potential claims may arise when another subcontractor negligently operates equipment, fails to secure materials, creates a dangerous condition, or otherwise causes an injury.

A General Contractor or Property Owner Is Not Automatically Liable

Construction cases require more analysis than simply identifying everyone on the project.

Under California’s Privette line of cases, a person or company that hires an independent contractor generally delegates responsibility for safely performing the contracted work to that contractor. As a result, a property owner, general contractor, or other hiring party is not automatically liable when an employee of an independent contractor is injured.

California courts recognize limited circumstances in which a hiring party may still face liability. Those can include situations involving a concealed property hazard known to the hiring party but not reasonably known to the contractor, or situations in which the hiring party retained control over part of the work and actually exercised that control in a manner that affirmatively contributed to the injury.

That is why construction accident cases require investigation of much more than who owned the property.

Contracts, subcontracts, job responsibilities, site control, equipment ownership, safety procedures, witness testimony, photographs, and the actual conduct of the parties may all matter.

Defective Equipment Can Create a Third-Party Product Liability Claim

Some workplace injuries are caused by machinery or equipment that fails dangerously.

Examples may include:

• industrial machinery
• ladders
• lifts
• scaffolding components
• power tools
• safety equipment
• vehicles
• pumps
• construction equipment
• defective parts or components

When a product defect contributes to an injury, there may be a claim against an outside manufacturer, distributor, seller, or another responsible company.

The workers’ compensation claim and product liability claim can involve very different legal issues.

Preserving the equipment is particularly important. A machine or component may contain evidence showing why it failed. If it is repaired, altered, discarded, or returned before it can be examined, valuable evidence may be lost.

If defective equipment may have contributed to a serious injury, the product should be identified and preserved as early as reasonably possible.

Injuries on Someone Else’s Property

Employees frequently perform their jobs on property that belongs to someone else.

Examples include:

• delivery drivers
• repair technicians
• home health workers
• maintenance employees
• cleaning workers
• sales representatives
• contractors
• inspectors
• utility workers

If a dangerous property condition causes the injury, a premises liability claim may be possible against a responsible outside party.

Potential hazards may include unsafe stairs, defective walking surfaces, falling objects, inadequate maintenance, concealed holes, dangerous structures, or other hazardous conditions.

However, these cases also require careful analysis of the relationship among the property owner, the employer, and any contractors involved. When the property owner hired the injured worker’s employer to perform the work, California’s independent-contractor rules may significantly affect whether the property owner can be sued.

The answer depends on the facts.

Can You Sue Your Employer Directly for a Work Injury?

Usually not for ordinary negligence.

California does, however, recognize several narrow statutory exceptions to workers’ compensation exclusivity.

These exceptions should not be confused with ordinary third-party cases.

Willful Physical Assault by the Employer

Labor Code section 3602 allows a civil action when the employee’s injury or death is proximately caused by a willful physical assault by the employer.

This is much narrower than simply alleging that the employer behaved badly or intentionally violated a workplace rule.

Fraudulent Concealment That Aggravates an Injury

A civil action may also be available when an employer fraudulently conceals both the existence of a workplace injury and its connection to the employment, and that concealment aggravates the employee’s injury.

Importantly, the civil damages under this exception are limited to the harm caused by the aggravation resulting from the concealment.

This is a specialized exception and requires considerably more than ordinary negligence or failure to warn.

A Defective Product Manufactured by the Employer

Labor Code section 3602 also contains a narrow product-related exception.

It can apply when the employer manufactures a defective product, sells, leases, or otherwise transfers it for valuable consideration to an independent third party, and that product is later provided to the employee for use by a third person.

This is not a general rule allowing an employee to sue an employer whenever workplace equipment is defective. The statutory requirements are specific.

Certain Power Press Injuries

Labor Code section 4558 creates another specific exception involving power presses.

Under defined circumstances, an employee may sue an employer when the injury results from the employer’s knowing removal of, or knowing failure to install, a point-of-operation guard on a qualifying power press and the other statutory requirements are satisfied.

This is a specialized rule that applies only to particular machinery and circumstances.

Employers Without Workers’ Compensation Coverage

An employer that fails to secure legally required workers’ compensation coverage can face substantially different consequences.

Labor Code section 3706 provides that when an employer fails to secure payment of workers’ compensation, an injured employee may bring an action for damages against that employer as though the workers’ compensation division did not apply.

Whether an employer had valid workers’ compensation coverage can therefore be a critical issue.

Serious and Willful Misconduct Is Different

Serious and willful misconduct is often confused with the right to sue an employer.

They are not the same thing.

Labor Code section 4553 provides for an increase in workers’ compensation when an employee is injured because of qualifying serious and willful misconduct by the employer or certain managing representatives.

The statute increases the compensation otherwise recoverable by one-half when its requirements are satisfied.

A serious-and-willful claim is therefore generally a remedy within the workers’ compensation system, not a standalone personal injury lawsuit against the employer.

That distinction is important.

Can You Sue a Co-Worker?

Ordinary negligence by a co-worker is also generally covered by workers’ compensation exclusivity.

For example, if another employee accidentally drops an object, operates equipment carelessly, or makes an ordinary driving mistake while both employees are acting within the scope of employment, a civil lawsuit against that co-worker will usually be restricted by the workers’ compensation system.

California law does recognize two express exceptions.

Labor Code section 3601 allows a civil action against a co-employee when the injury or death is caused by:

1. a willful and unprovoked physical act of aggression by the co-worker; or
2. the co-worker’s intoxication.

These are narrow exceptions.

Can You Have Workers’ Compensation and a Personal Injury Case at the Same Time?

Yes.

You can have both a workers’ compensation case and a separate third-party personal injury case when the legal requirements for both are satisfied.

The workers’ compensation case is based on the employment relationship. In general, the employee does not need to prove that the employer negligently caused the work injury to obtain benefits.

The third-party case is different. It requires proof that another legally responsible person or company caused or contributed to the injury.

The two cases may therefore proceed at the same time.

The Workers’ Compensation Lien Must Be Considered

There is another important complication.

When workers’ compensation benefits have been paid and the employee later recovers money from a third party, the employer or workers’ compensation carrier may have reimbursement or lien rights.

Labor Code section 3856 addresses reimbursement from a third-party judgment and recognizes an employer’s lien for qualifying workers’ compensation expenditures.

That does not mean the workers’ compensation carrier automatically receives everything it demands.

Lien rights, attorney fees, costs, employer fault, credits, settlement structure, and other issues may affect the final analysis.

But the workers’ compensation side should not be ignored when negotiating the third-party personal injury case.

Why a Third-Party Case Can Be Worth Significantly More

California workers’ compensation provides valuable benefits, including medical treatment and disability benefits. The California Division of Workers’ Compensation identifies medical care, temporary disability, permanent disability, supplemental job displacement benefits, and death benefits among the basic benefits available through the system.

Those benefits do not necessarily compensate an injured worker for every loss caused by a serious accident.

A successful third-party personal injury claim may potentially include compensation for:

• past and future medical expenses
• past lost earnings
• future lost earnings
• loss of earning capacity
• pain and suffering
• emotional distress
• physical limitations
• loss of enjoyment of life
• other proven economic and non-economic damages

The available damages depend on the facts, evidence, applicable law, and the nature of the injuries.

For a worker who suffers permanent disability, surgery, chronic pain, neurological injury, amputation, or another serious condition, identifying a valid third-party claim can make a substantial difference.

Evidence That Can Reveal a Third-Party Claim

Determining whether someone outside the employer caused the accident often requires investigation.

Important questions may include:

• Who owned the property?
• Who controlled the area where the accident occurred?
• Which companies were working at the site?
• Who owned or supplied the equipment?
• Who maintained or repaired it?
• Who manufactured the machine or component?
• Who was operating the vehicle or equipment?
• Was the responsible person working for another company?
• What contracts existed among the companies?
• Is surveillance video available?
• Were photographs taken?
• Were there witnesses?
• Are maintenance or inspection records available?
• Did Cal/OSHA investigate?
• Were there previous complaints about the same hazard?

The initial workplace incident report rarely answers every one of these questions.

That is why early investigation matters.

Do Not Let Important Evidence Disappear

Evidence in workplace cases can change quickly.

Construction sites are altered every day. Machinery is repaired. Vehicles are moved. Surveillance footage may be overwritten. Temporary hazards are corrected. Employees leave projects. Companies blame one another.

If a third-party personal injury claim may exist, evidence should be preserved as early as possible.

Depending on the case, that may include:

• photographs and video
• incident reports
• witness information
• equipment
• damaged components
• contracts and subcontracts
• maintenance records
• inspection records
• training documents
• project records
• electronic communications
• vehicle information
• Cal/OSHA records

The stronger the evidence showing who caused the accident, the stronger the liability analysis becomes.

How Long Do You Have to File a Third-Party Work Injury Lawsuit?

For many California personal injury claims, the general statute of limitations is two years from the injury under Code of Civil Procedure section 335.1.

But that is not a safe deadline to assume in every case.

For example, a personal-injury claim against a California public entity generally requires presentation of a government claim within six months after the cause of action accrues.

Other rules may affect particular defendants, injuries, or circumstances. Workers’ compensation claims also have their own notice and filing requirements.

The safest approach is to investigate potential claims early rather than calculating deadlines after evidence has already disappeared.

How Anderson Franco Law Evaluates Workplace Injury Cases

At Anderson Franco Law, one of the first questions we ask after a serious workplace accident is:

Who caused the injury besides the employer?

Sometimes the answer is no one, and the matter belongs primarily within the workers’ compensation system.

Other times, investigation reveals another legally responsible party.

That may be:

• another driver
• another subcontractor
• an equipment company
• a manufacturer
• a property-related defendant
• a trucking or delivery company
• a maintenance company
• another business involved in the accident

We examine how the accident occurred, identify the companies and insurance policies involved, preserve important evidence, and evaluate whether the facts support a separate personal injury claim.

Our published case results include a $750,000 settlement for a construction worker injured when a boom pump exploded on a San Francisco job site. Every case is different, and prior results do not guarantee any particular outcome.

Attorney Anderson Franco previously represented insurance companies in personal injury litigation. That experience provides insight into how insurers analyze liability, causation, medical treatment, damages, witness credibility, and settlement value.

Clients work directly with Anderson on the important issues affecting their cases.

The Most Important Question After a Workplace Injury

The question is not simply:

“Was I hurt at work?”

The better question is:

“Who caused me to get hurt?”

If the answer includes a person or company other than your employer, there may be a separate third-party personal injury claim worth investigating.

Workers’ compensation exclusivity is an important rule, but it should not be used as a reason to stop investigating a serious workplace accident too early.

Frequently Asked Questions About Suing Outside Workers’ Comp

Can I sue my employer after a work injury in California?

You usually cannot sue your employer for ordinary negligence after a work injury because workers’ compensation is generally the exclusive remedy. California recognizes narrow statutory exceptions, including certain employer assaults, fraudulent concealment claims, qualifying employer-manufactured defective products, certain power-press cases, and claims against employers that failed to secure workers’ compensation coverage.

Can I sue someone other than my employer?

You can sue someone other than your employer when that person or company is legally responsible for causing your workplace injury. This is generally called a third-party personal injury claim.

Can I have workers’ compensation and a personal injury lawsuit?

You can have both workers’ compensation and a personal injury lawsuit when you suffered a covered work injury and a third party also caused or contributed to the accident.

Can I sue another driver if I was driving for work?

You may be able to sue another driver if that driver caused a collision while you were performing your job. You may simultaneously have a workers’ compensation claim because the accident occurred during your employment.

Can a construction worker sue outside workers’ compensation?

A construction worker may be able to sue outside workers’ compensation when a legally responsible third party caused the injury. Liability involving property owners and companies that hired the worker’s employer can be more complicated because California’s Privette doctrine may limit those claims.

Can I sue over defective equipment that injured me at work?

You may have a product liability claim if defective equipment caused your injury and an outside manufacturer, distributor, seller, or other legally responsible party is liable for the defect.

Can I sue a property owner if I was injured while working on its property?

You may be able to sue a property owner in some circumstances, but simply owning the property is not enough. If the owner hired your employer or another independent contractor to perform the work, California law imposes additional restrictions that must be analyzed carefully.

Can I sue a co-worker who caused my injury?

You generally cannot sue a co-worker for ordinary negligence committed within the scope of employment. Labor Code section 3601 recognizes exceptions for injuries caused by a co-worker’s willful and unprovoked physical aggression or intoxication.

Is serious and willful misconduct a lawsuit against my employer?

Serious and willful misconduct is generally not a separate civil personal injury lawsuit. Labor Code section 4553 provides an increased workers’ compensation recovery when its requirements are established.

Can I sue an employer that did not have workers’ compensation insurance?

You may be able to sue an uninsured employer directly. Labor Code section 3706 permits an injured employee to bring an action for damages when the employer failed to secure required workers’ compensation coverage.

How long do I have to file a third-party workplace injury lawsuit?

You generally have two years to file many California personal injury lawsuits, but shorter deadlines can apply. Claims involving government entities can require action within six months, and workers’ compensation has separate deadlines. The specific facts should be reviewed promptly.

Speak With Anderson Franco Law About a Workplace Injury

If you were seriously injured while working in California, do not assume workers’ compensation is your only potential source of recovery.

A workplace accident may involve another driver, contractor, business, manufacturer, property-related defendant, or other third party whose responsibility is not obvious from the initial accident report.

Anderson Franco Law evaluates workplace accidents to determine what claims may exist and who may be legally responsible.

Call or text (415) 727-1832 for a free consultation.

Anderson Franco Law represents injured clients in San Francisco, throughout the Bay Area, and in appropriate cases throughout California.