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No Workers Comp Exclusion where Employer has no Insurance

The Missouri Court of Appeals for the Western District, in Lewis v. Gilmore, finds:

Nothing in the Workers' Compensation Act prohibits an employee or his dependents from recovering workers' compensation from one employer and tort damages from another employer who failed to secure workers' compensation insurances for its employees. In fact, the plain language of section 287.280.1 allows it.

Essentially, plaintiffs wanted to sue two separate employers for the same injury. One employer had workers compensation; the other did not. On appeal, the Missouri Court of Appeals said that the plaintiff may proceed against both. The workers comp remedy is for the insured employer; however, the plaintiff may proceed against the uninsured employer in an ordinary tort (negligence) action. However, the law abhors a double recovery. Workers compensation will have a subrogation remedy for the amounts it has paid out. In other words, the plaintiff will have to subract the amount he received in workers compensation from the tort award/judgment he receives against the uninsured employer.