Unless an injured employee assigns a cause of action or voluntarily joins litigation as a party plaintiff, the insured may not enforce its statutory right to subrogation by filing a direct action against the tortfeasor.

The Pennsylvania Supreme Court holds that the trial court properly sustained the preliminary objections filed by the tortfeasors. The court said its Domtar Paper decision does not support the proposition that an employer or workers’ compensation carrier can seize an injured employee’s cause of action against a tortfeasor by merely captioning the complaint “on behalf of “ the employee and/or by including in the complaint independent claims of the employee in addition to the claim of subrogation of workers’ compensation benefits. The court described the insurer’s interpretation of Domtar Paper as overly literal and one that goes against jurisprudence, establishing that it is the injured worker who retains the cause of action against the tortfeasor. Absent an injured employee’s assignment or voluntary participation as a party plaintiff, the insurer may not enforce its § 319 right to subrogation by filing an action directly against the tortfeasor. 

^{Case Law Alerts, 2nd Quarter, April 2019}

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