The Pennsylvania Supreme Court decided that an insurer cannot take third-party action against someone who they think is responsible for a worker’s injury on behalf of the worker if the worker does not participate in the suit. This decision means that in Pennsylvania the right of action against the tortfeasor lies with the injured worker, unless they voluntarily join the litigation as a plaintiff or assigns cause of action.

Chunli Chen was working for Reliance Sourcing, Inc., in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle operated by Kafumba Kamara. She received workers’ compensation benefits through her employer’s insurer, The Hartford. They paid $59,424.71 in medical and wage benefits. Chen did not file an action against Kamara or Thrifty Rental Car and did not assign her cause of action again Tortfeasors to Insurer. The Hartford filed a praecipe for a writ of summons against the alleged tortfeasors, on behalf of Chunli Chen. The complaint included two negligence counts, saying each of the defendants were liable to the Hartford and to Chen for injuries they caused her.

An initial trial court dismissed their complaint and said they could not proceed, and then the Superior Court allowed it to go forward because the Hartford had filed its action “on behalf” of Chen and had filed a suit to establish the liability of the defendants to Chen. The PA Supreme Court then vacated that judgement and sustained the objections of the trial court. Their logic was that unless the worker voluntarily joins litigation or assigns their cause of action the insurer may not enforce their statutory right to subrogation by filing an action against the tortfeasor.

Read more here and read the full case here.