Suing Over a Work Injury in West Virginia
When West Virginia law lets an injured worker sue the employer, suing a third party such as a driver or equipment maker, and what to do if the employer has no workers' comp.
Short answer: Generally no. An employer that keeps required workers' comp coverage (or is approved to pay directly) and is not in default is not liable in damages at common law or by statute for an employee's injury or death, however it occurs. W. Va. Code §§ 23-2-6, 23-4-2(c), (d)(2)
| Suing your employer | Generally no. An employer that keeps required workers' comp coverage (or is approved to pay directly) and is not in default is not liable in damages at common law or by statute for an employee's injury or death, however it occurs. The immunity is lost only if the employer acted with 'deliberate intention', proved either by a consciously formed specific intent to injure (not negligence or even willful, wanton or reckless conduct) or by all the facts in a statutory list beginning with a specific unsafe working condition; the worker may then sue for damages beyond comp benefits. An employer that fails to carry required coverage can also be sued (see uninsured_employer). |
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| Suing someone other than your employer | Yes. A worker injured by a third party's act or omission may collect workers' comp and also make a claim against the third party. On a recovery, the private carrier or self-insured employer has statutory subrogation for indemnity and medical benefits paid as of the recovery (for claims accruing on or after January 1, 2006), and a statutory subrogation lien attaches to the money received; reasonable attorney fees and costs are deducted, and the party with the subrogation right may negotiate the amount it accepts. The worker, dependents or their attorney must give reasonable notice of the third-party claim to the Insurance Commissioner or carrier. Source: W. Va. Code § 23-2A-1 |
| If your employer has no workers' comp | An employer that fails to obtain and keep required workers' comp insurance (or permission to self-insure) is liable to its employees for all damages from work injuries caused by the wrongful act, neglect or default of the employer or its agents, and cannot use the fellow-servant, assumption-of-risk or contributory-negligence defenses (this loss of defenses does not apply to suits against political subdivisions or employers not required to have coverage). The Insurance Commissioner administers an Uninsured Employer Fund, which has subrogation rights for benefits it pays. |
Where to get help in West Virginia
More West Virginia workers' compensation
- Filing a Workers' Comp Claim in West Virginia
- How Much Workers' Comp Pays in West Virginia
- Workers' Comp Settlements in West Virginia
- Retaliation for Filing Workers' Comp in West Virginia
- Appealing a Denied Workers' Comp Claim in West Virginia
- All West Virginia workers' compensation rules
FAQ
Can you sue your employer for a work injury in West Virginia?
Generally no. An employer that keeps required workers' comp coverage (or is approved to pay directly) and is not in default is not liable in damages at common law or by statute for an employee's injury or death, however it occurs. The immunity is lost only if the employer acted with 'deliberate intention', proved either by a consciously formed specific intent to injure (not negligence or even willful, wanton or reckless conduct) or by all the facts in a statutory list beginning with a specific unsafe working condition; the worker may then sue for damages beyond comp benefits. An employer that fails to carry required coverage can also be sued (see uninsured_employer).
Can you sue a third party for a work injury in West Virginia?
Yes. A worker injured by a third party's act or omission may collect workers' comp and also make a claim against the third party. On a recovery, the private carrier or self-insured employer has statutory subrogation for indemnity and medical benefits paid as of the recovery (for claims accruing on or after January 1, 2006), and a statutory subrogation lien attaches to the money received; reasonable attorney fees and costs are deducted, and the party with the subrogation right may negotiate the amount it accepts. The worker, dependents or their attorney must give reasonable notice of the third-party claim to the Insurance Commissioner or carrier.
What if my employer doesn't have workers' comp insurance in West Virginia?
An employer that fails to obtain and keep required workers' comp insurance (or permission to self-insure) is liable to its employees for all damages from work injuries caused by the wrongful act, neglect or default of the employer or its agents, and cannot use the fellow-servant, assumption-of-risk or contributory-negligence defenses (this loss of defenses does not apply to suits against political subdivisions or employers not required to have coverage). The Insurance Commissioner administers an Uninsured Employer Fund, which has subrogation rights for benefits it pays.
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.