Wickert: Understanding the Exclusive Remedy Rule

The exclusive remedy rule is neither exclusive nor a remedy. What began as a cornerstone of the social insurance experiment known as workers’ compensation has become so riddled with leaks that employers and their insurers often give up on subrogation in order to protect themselves from liability they were never intended to bear. One of the biggest holes in the exclusive remedy dam is known as the dual capacity doctrine. Like all of the other holes in the dam, it has gotten much bigger over the years. Understanding it is crucial to recovery efforts regardless of the state you are subrogat...