The exclusivity provision of Missouri's Workers' Compensation Act ("the Act") essentially constitutes a statutory mandated quid-pro-quo agreement amongst employees and their employers. Under the terms of the Act, employers incur the burden of no-fault liability for workplace injuries. The Act states that "[e]very employer ... shall be liable, irrespective of negligence, to furnish compensation . . . for personal injury or death of the employee by accident arising out of and in the course of [his] employment." In exchange for employers incurring this burden, the Act statutorily abrogates any common law right of action the employee may hold against the employer for the injury. In this regard, the Act states that "[e]very employer subject to the provisions of this chapter ... shall be released from all other liability... whatsoever, whether to the employee or any other person." The exclusivity provision of the Act, however, does nothing to prevent injured employees from bringing suit against negligent third parties for their workplace injuries. The Act recognizes the potential for such situations by providing employers with a right of subrogation against any recovery since they remain liable for the workplace injury under the no-fault scheme. If the Act provides an injured employee with less in benefits than the employee would have likely recovered as damages under a common law negligence suit, the ability to sue a negligent third party is an attractive option. Many times, workplace injuries occur because of the negligence of an injured party's co-employee. Therefore, to gain the benefits of the third-party suit option, injured parties may argue that their negligent co-employee is a "third person" not entitled to the exclusivity provision of the Act. Missouri courts have dealt with the issue of whether negligent coemployees constitute "third persons" many times, but they have struggled to formulate a workable rule. In principle, Missouri courts have accepted the premise that a co-employee can potentially constitute a "third person" subject to a common law suit for acts of workplace negligence. In application, the courts only allow injured employees to bring such suits when they allege that the co-employee committed "something more" than a mere negligent act. This Comment will attempt to identify what constitutes "something more."
Michael S. Kruse,
Current State of Co-Employee Immunity under Workers' Compensation Law, The,
70 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss4/16