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Smith v. Desautels

Practice Area: Appeals

Outcome: Superior court's dismissal reversed and remanded

Description: Plaintiff, who suffered a crushed hand in the scope of his employment, received worker's compensation benefits paid for by his employer. The employer did not carry worker's compensation insurance, in violation of statute. After receiving worker's compensation benefits, Plaintiff sued his employer under Vermont statutes providing that an employee injured in the course and scope of his employment, whose employer fails to carry worker's compensation insurance, is not deemed by having accepted worker's compensation benefits to have elected the worker's compensation remedy over the remedy of civil suit. Rather, the election between the remedies may only be made by a written waiver of the right to bring civil suit. The Superior Court granted summary judgment dismissing the civil suit on election of remedies grounds, and the Plaintiff appealed. The Vermont Supreme Court, in a decision published at 2008 VT 17, reversed and remanded the case, holding Plaintiff had never waived his right to pursue a civil action. Representing the Plaintiff were Eugene Rakow, Rutland, Vermont (in the proceedings below and on appeal), Alan P. Biederman (on appeal), and L. Maxwell Taylor (on appeal).

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