Exclusive Remedy

The exclusive remedy rule says that when a worker is hurt or made ill by their job, workers' compensation is usually the only remedy against the employer. The worker generally cannot sue the employer in court, though they can still sue outside companies, such as the makers and sellers of asbestos products used at work.

Origin

The rule is the core of the bargain behind the workers' compensation laws that U.S. states adopted in the 1910s and after: workers got benefits without having to prove fault, and employers got immunity from injury lawsuits. Each state wrote its own version into its compensation statute, and federal programs such as the Longshore Act have similar provisions.

Significance in Asbestos Context

For most people with an asbestos disease, the exclusive remedy rule is why their own employer is usually not a defendant in the lawsuit. Instead, the case is brought against the companies that mined, made, sold or installed the asbestos products, and against property owners or contractors who were not the person's employer. The employer's role is handled through a workers' compensation or occupational disease claim, which pays limited, scheduled benefits for medical care and lost wages. There are exceptions that vary by state: some allow suits for intentional or deliberate harm, some recognize a dual capacity theory when the employer also made the product, and in many states the rule does not protect an employer that failed to carry compensation insurance. Seamen are covered by different law entirely. Because asbestos diseases appear decades after exposure, the old employer may also have changed names, merged, gone bankrupt or set up a trust, which can change who can be pursued and where.

Example Sentence

Because of the exclusive remedy rule, the pipefitter could not sue the refinery that employed him, but he could sue the manufacturers of the insulation and gaskets he worked with there.

Related Terms

Workers’ Compensation, Intentional Tort Exception, Dual Capacity Doctrine, Occupational Disease Act, Last Injurious Exposure Rule, Longshore and Harbor Workers' Compensation Act (LHWCA), Jones Act, Premises Liability

Notes

• Make a list of every employer and job site, even though most employers will not be defendants; the list helps identify the product makers who can be.
• A workers' compensation claim and a lawsuit against product makers can often proceed side by side; ask your lawyer how they interact in your state, including any lien.
• If your employer also made asbestos products, mention it; some states treat that differently.