Workers' Compensation and Suing a Customer Who Injured You

Attorney Answer

You do not have to choose. Workers' compensation and a claim against the driver are separate tracks that run at the same time. And "prosecuting" him is not actually your decision — only a prosecutor can file criminal charges. What you can do is report it, and pursue him civilly.

Idaho Code § 72-223 preserves exactly that. An employee injured by the negligence or wrong of a third party keeps the right to pursue that third party even while receiving workers' compensation benefits. Once compensation is awarded, your employer and its surety are subrogated to your rights against the third party to the extent of the employer's compensation liability, and on any recovery the employer ordinarily bears a proportionate share of costs and attorney fees. Where the third-party recovery exceeds compensation already paid, the employer receives a credit against future liability while reimbursing your proportionate attorney fees. That is what your employer is doing when it "sues him to pay for my workman's comp" — it is a subrogated claim standing in your shoes for what it has paid out. It is related to your own claim but it is not the same claim, and it is not being brought for your pain, your permanent impairment, or your losses beyond what comp covers.

Idaho Code § 72-209 is the reason people get confused about this. It makes workers' compensation the exclusive remedy against the employer, and § 72-209(3) extends that immunity to the employer's surety and to all officers, agents, servants, and employees of the employer or surety. It also contains an exception where the injury is caused by willful or unprovoked physical aggression, shown by clear and convincing evidence. But notice the boundary: the shield covers your employer, its insurer, and your co-workers. It does not cover a customer. An unrelated third party who drives into you is outside it entirely, and you do not need the aggression exception to get there.

The Idaho Supreme Court's decision in Gerdon v. Rydalch shows where that boundary sits, though it does so from the losing side. An injured salesman sued the co-worker who was driving on a company errand; both men had received workers' compensation benefits, and the Court affirmed summary judgment against the injured worker, applying the exclusive remedy rule and holding that co-employee immunity requires a connection between the defendant's acts and the employment. The Court also awarded the defendant attorney fees for a frivolous appeal. The point for you is the negative one: the shield is anchored to the employment relationship, which is precisely why a customer falls outside it — and the fee award is a reminder that suing someone who is immune is expensive.

On the criminal side, neither statute speaks to it. The charging decision belongs to the prosecutor. You can report the incident and be the complaining witness, but you cannot compel a charge, and a criminal case does not pay your medical bills or replace your wages.

What you can do

1. Report the incident to law enforcement now if you have not. Give a written statement, name every witness, and get the report number. A report made weeks later is worth far less than one made today. 2. Confirm in writing that a workers' compensation claim has actually been filed with your employer and its surety, and get the claim number. Do not assume your employer filed it because you told a manager. 3. Keep treating and make sure every provider records that this was a work injury caused by a customer's vehicle. Gaps in treatment are the most common way these claims lose value. 4. Do not give a recorded statement to the driver's insurer and do not sign anything they send — including any release or medical authorization — without advice. 5. Preserve evidence: surveillance video from the business, photos of the truck and your injuries, the names of employees who saw it, the service ticket or refusal record for that customer, and any texts about the incident. Ask the business in writing to preserve its video before it overwrites. 6. Talk to a personal injury attorney about the third-party claim against the driver under Idaho Code § 72-223, and specifically about how the employer's subrogation interest and the fee-sharing provisions would affect your net recovery. 7. Ask the prosecutor's office what, if anything, was filed. If restitution is ordered in a criminal case, tell your civil attorney — restitution and civil recovery interact.

⏱ Time limits apply. Two separate clocks are running: one to file and pursue your workers' compensation claim, and a different one to bring a civil action against the driver. They are not the same length, and each depends on your injury date and your specific facts. Your employer's subrogated claim under Idaho Code § 72-223 does not preserve your own — do not rely on your employer's lawsuit to protect your rights. Have a lawyer confirm both dates now.