Unfortunately, The Supreme Court of Pennsylvania has answered in the negative; disallowing a direct action by an employer against a third party tortfeasor in Hartford Insurance Group on behalf of Chunli Chen v. Kafumba Kamara, Thrifty Car Rental and Rental Car Finance Group, No. 24 EAP 2017; Decided: November 21. The Court declined to permit such a practice and relied on two prior decisions from the Court in Scalise (Pa. 1930) and Domtar Paper Co, (Pa. 2015). Both cases decided that only the employee can maintain a direct action against a third party tortfeasor, and that the employer can proceed to enforce subrogation rights if "brought in the name of the injured employee" or joined in by the injured employee. The Supreme Court in Kamara determined that "brought in the name of the injured employee" did not allow an action "on behalf" (note wording of case caption above) of the injured employee and required the employee to contractually assign his action to the employer.
The rationale for this decision as expressed by the Court is the long-standing principle that when a tortfeasor's act is a single event only one liability attaches. To allow an employer to proceed with an action for the recovery of a subrogation lien could result in the splitting of the cause of action if an employee would also proceed with an action. In essence, the tortfeasor is being subjected to multiple causes of action when the tortfeasor committed only a single event. The requirement that the action only lies with the employee provides judicial efficiency and eliminates possible inconsistent results.
Comment: There is a silver lining to this recent decision even though it makes clear that an employer cannot bring an action against a third-party tortfeasor because that action lies with the injured employee. In today's litigious atmosphere, it's hard to imagine that a litigant with a cause of action would decline to proceed, but it does happen for various reasons. The important point to take from this decision is the fact that we can approach the injured employee to assign his cause of action to the employer and then proceed with an action against the third-party tortfeasor. Although, it may prove difficult to obtain a contractual assignment from the injured employee, at least we have the option of trying to proceed in this manner. Prior Supreme Court decisions, noted above, did not provide for this opportunity and simply determined that the action lies with the employee only.
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Jennifer R. Williams