 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Buck v. Freeman12/12/2000
limited, casual, and supplemental? Would an all-or-nothing responsibility really be a bad thing? Might it not be desirable to be able to assume that anyone undertaking safety inspections around a plant will do a complete job and take the responsibility for it? Id. at 98 (citing Larson, Workmen's Compensation Insurer as Suable Third Party, 1969 Duke L.J. 1117, 1141-42).
The Iowa Supreme Court similarly recognized an employee's right to maintain a common law negligence action against the compensation insurer for negligent inspection. Fabricius v. Montgomery Elevator Co., 121 N.W.2d 361 (Ia. 1963). In response to the insurer's argument that it had only the same liability as that of the employer, the court held that an insurer did not enjoy immunity from its own torts. Id. at 365. The Iowa court declined the insurer's invitation to speculate what the intent of the Iowa legislature was, stating:
In this regard it is the policy of this court not to interpret a statute as depriving one of a common law right unless the statute clearly so states. The power to deprive one of a common law action is vested in the legislature under its police power upon declared public policy. Id. at 366 (citations omitted) (emphasis added); Rosenfield, 201 Minn. at 116, 275 N.W. at 699 (existing common law right is not to be taken away by statute, unless by direct enactment or necessary implication).
The federal district court of North Carolina allowed an employee to sue a compensation carrier for negligent inspection in Smith v. Liberty Mutual Ins. Co., 409 F.áSupp. 1211 (M.D.N.C. 1976), aff'd, 598 F.2d 616 (4th Cir. 1979). The court analyzed the state compensation law and found no language which equated the insurer with the employer and declined to do so, stating:
In considering a question such as the one raised in this case, it is especially important to heed the advice of late Justice Felix Frankfurther:
"One more caution is relevant when admonished to listen attentively to what a statute says. One must also listen attentively to what it does not say." Id. at 1217 (quoting Frankfurther, Some Reflections on the Reading of Statutes, 47 Colum L. Rev. 526, 536 (1947) (emphasis added).
Applying Justice Frankfurther's admonition to the question of whether or not an injured employee can maintain a common law action for negligence against the employer's workmen's compensation carrier, leads to the straightforward and logical conclusion that such a cause of action is permitted under the terms of the North Carolina statute. Id. at 1217.
In this regard, Professor Larson's observation is helpful:
To say that it is only equitable that the carrier should enjoy the employer's immunities to the extent he assumes his burdens may appeal to the court's sense of symmetry and fairness. The only catch is that this is not what the statute says. Larson, supra, § 72.96 (emphasis added).
Page 1 2 3 4 5 6 7 8 Minnesota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|