Workers compensation statutes in most states limit a worker's remedies for work-related injuries to a workers' comp claim against the employer. This limitation is often referred to as the “exclusive remedy provision.” The provision prevents workers who are injured on the job from filing suit and seeking compensation against their employers and co-employees. As a result, personal injury suits for harm that is caused in the workplace typically involve situations where there is intentional harm or where the worker is injured by the negligence of a "third party" - a person or entity which is neither the worker's employer nor their co-employee. Typically, the “exclusive remedy provision” only applies where the employer carries insurance that will provide injured workers with compensation for medical care, lost wages, and other damages. But even where an employer carries insurance, and a worker is harmed on the job, the law has carved out specifics about when a person is and is not at work, whether an injured worker was injured in the scope of their employment, and thereby – whether or not the “exclusive remedy provision” applies.

California’s Second District Court of Appeals recently heard a case that turned on the issue of whether or not workers compensation was the “exclusive remedy” available to an injured worker. The worker, Eugene Duffy, was assaulted by a co-worker in August of 2004. Mr. Duffy filed suit in an attempt to hold his employer, Technicolor Entertainment Services, Inc. responsible for negligently retaining and supervising the co-worker that attacked him. He pointed toward a pattern of violent threats and verbal attacks in alleging that Technicolor Entertainment Services should have fired the co-worker before he caused any harm. In response, Technicolor argued that the “exclusive remedy” rule pre-empted Mr. Duffy's lawsuit because the attack grew out of, and was incidental to, his employment. The court disagreed, stating that Mr. Duffy wasn’t injured in the scope of his employment – in part, because he was attacked as he stepped out of his car at work and in part because he was not performing work for his employer at the time that the attack occurred. The court then upheld the finding of the jury that awarded Mr. Duffy $1 million and agreed that Technicolor had a heavy hand in Mr. Duffy’s being injured. If the court had found that the “exclusive remedy” did prevent him from collecting more than workman’s compensation, his award undoubtedly would have been much less.