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Can you sue an employer for a wrongful death?

Workers' compensation benefits are designed to be a no-fault system. It generally doesn't matter who was negligent -- the employer or the employee -- when someone gets injured or killed on the job, workers' compensation is designed to compensate either the employee or any close surviving relatives that were dependent on the worker.

However, there are exceptions in the law. Sometimes the surviving family members of a worker can press a wrongful death lawsuit outside of the workers' comp system.

A wrongful death lawsuit alleges that someone else caused the worker's death and his or her family members have suffered economic and non-economic losses (like the loss of parental guidance or spousal companionship) as a result.

While each state has its own rules regarding what will allow a suit outside the workers' comp system to proceed, one of the most common exceptions is when the employer or another employee intentionally caused the workers' death. It's important to consider the idea that even something like purposefully ignoring safety regulations or pushing an employee to do something that was clearly unsafe could be considered an intentional act.

Another way that surviving family members can jump a claim out of the workers' comp system is to pursue a wrongful death claim against a third party that's involved in the accident.

For example, a worker in an industrial plant who is killed while operating a malfunctioning piece of machinery may be the victim of the machinery manufacturer's negligence if the machinery itself was defective. He or she might also be the victim of the machinery's maintenance and service company, if they failed to detect early warning signs that the machine was not properly operating.

Third-party lawsuits are often pursued in addition to the normal workers' comp death benefit claim.

Why, if workers' comp is a no-fault system, does anyone try to move a claim out of the system and press a wrongful death lawsuit instead, knowing that a lawsuit can be emotionally difficult and time-consuming to pursue?

The decision is generally an economic one. Workers' compensation benefits are somewhat limited -- even the amount paid for a death is capped, no matter how many survivors relied on that worker. Workers' comp also won't award survivors anything for their pain and suffering or loss of companionship.

For more information on how our firm approaches claims involving fatal accidents, please visit our page.

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Marquardt & Belmonte, P.C.

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Marquardt & Belmonte, P.C.
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Wheaton, IL 60187

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