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To Implead Or Not To Implead - That Is The Question
In March 2004, F & P principal Bert Randall successfully defeated an appeal brought by the Uninsured Employer's Fund ("UEF") against McKesson, Inc. on the basis that the UEF had no authority to implead McKesson before the Workers' Compensation Commission ("Commission"), and, even if it had the authority, the claim was effectively barred by limitations. In a very unusual case, the Claimant, while working for a one-man shop, was injured in 1991. Since that employer did not have workers' compensation coverage, the owner paid the Claimant weekly benefits out of his own pocket for nearly nine years, much longer than the owner would have been otherwise legally obligated to pay had benefits been awarded by the Commission. Nearly two years after the claim began, the UEF was impleaded, but did not begin to pay benefits since the owner was paying Claimant directly. Approximately four years after the accident, a hearing was held, at which time the UEF indicated that McKesson was a statutory employer pursuant to ß 9-508, and was liable for benefits once the owner stopped paying them. Sometime in 2000, the owner apparently died, and the UEF attempted to implead McKesson as a statutory employer to relieve the UEF from paying the claim. This was the first knowledge that McKesson had regarding the claim. McKesson argued before the Commission that the UEF, at the time, had no statutory authority to implead McKesson, as no statutes expressly authorized such a right, and, even if there were such a right, by waiting nine years before impleading McKesson, UEF was effectively barred under a limitations theory. While the Commission did not grant McKesson's procedural defense, it denied the claim, instead finding that McKesson was not a statutory employer. On appeal, however, the Circuit Court agreed with McKesson that it did not have to reach the merits as the UEF had no authority to implead nor did it even attempt to do so in a remotely timely manner. Consequently, McKesson was unfairly prejudiced and was dismissed from the claim. The UEF has stated its intention to appeal to the Court of Special Appeals, so we will continue to apprise you of future developments on this unusual claim. Reprinted from F & P First Report, a quarterly publication of Franklin & Prokopik, Two North Charles St., Suite 600, Baltimore, MD. This article is not intended to provide legal advice. Specific questions regarding any legal issue should be addressed to counsel. © 2004 Franklin & Prokopik. All Rights Reserved. Occ. Med. Central is growing every day. There is so much useful information on the web there is no way we can know nor find it all. That's where you come in. Don't feel limited by our current category list. If you find the item useful, then your colleagues will want to know about it. Click on the "Contribute" button to send us your contribution.  |