Does Your Workers' Compensation Insurance Cover An Active Shooter Situation In The Workplace? Maybe Not

• Published date: 03 March 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Health & Safety, Employee Benefits & Compensation, Personal Injury
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Gregg Fisch and Michaela Goldstein

Under current California law, if an employee is injured while performing services related to and within the course of their employment, the injured employee can recover for their injury only through a workers' compensation claim (absent narrow exceptions). See Labor Code Section 3600(a). In other words, injured employees generally do not have a legal basis to assert civil claims in a lawsuit against their employer in order to seek monetary damages for a workplace injury. This policy of workers' compensation exclusive remedies helps to ensure that employees will receive coverage from their employers for workplace injuries, through the employers' workers' compensation insurance. Moreover, this policy traditionally prevents employers from being hit with expensive negligence lawsuits for violence that occurs wholly outside of the employers' control. However, two New York courts considering the issue of mass shootings may have begun to shake up this status quo.

Recently, in Matter of Timperio v. Bronx-Lebanon Hosp., 2022 WL 320641 (N.Y. App. Div. Feb. 3, 2022), a New York state appellate court issued a ruling that potentially changes the landscape of workers' compensation coverage for random acts of violence (e.g., mass shootings). In that case, a former physician at Bronx-Lebanon Hospital ("the Hospital"), resigned from the Hospital following a sexual harassment allegation. More than two years later, on June 30, 2017, he entered the Hospital carrying a loaded AR-15 rifle and shot and injured physician Justin Timperio, shot and killed another doctor, and shot and wounded four staff members and a patient. Id. at 1. The shooter then killed himself. Id. In March 2018, Timperio filed a civil action in the United States District Court for the Southern District of New York against the Hospital, alleging causes of action for (1) negligence, (2) negligent infliction of emotional distress, and (3) negligent hiring, retention, training, and supervision. Id. In May 2019, the Hospital moved for summary judgment in the federal court civil action, claiming that Timperio's claims were barred by the exclusive remedy provisions of Workers' Compensation Law sections-11 and 29(6). Timperio v. Bronx-Lebanon Hosp. Ctr., 384 F. Supp. 3d 425, 431 (S.D.N.Y. 2019). However, the District Court denied the Hospital's motion, in relevant part, on the grounds that "Timperio's injuries did not arise out of or in the course of his employment because there was no evidence that the shooting...