Employers are responsible for all injuries to employees that arise out of and in the course of employment.  In contrast, claims by an injured worker against a co-worker are much more limited.  Iowa law requires an injured worker to show gross negligence against a co-worker in order to collect damages. The elements of proof in order to establish gross negligence are:

  1. That the co-worker had knowledge of the danger;
  2. That the co-worker’s knowledge was that injury was probable, rather than merely possible; and
  3. The co-worker demonstrated a conscience failure to avoid the peril.

The Iowa cases that have examined the standard for gross negligence have also stated that gross negligence must rise to the level of being wanton neglect for the safety of another.  In turn, wanton neglect has been defined as the co-worker being indifferent as to whether his actions would injure another or not.

The Iowa cases have further explained that wanton behavior differs from an intentional wrong in that instead of the co-worker affirmatively wishing to injure another, the co-worker is merely willing to do so.

In addition to having to establish gross negligence to collect against a co-worker, an injured worker is frequently hampered in actually collecting any damages because of the lack of insurance coverage for a co-worker.  The problem is that insurance policies which would potentially provide coverage for a co-worker exclude coverage for intentional acts by the co-worker.  The insurance policies are generally limited to providing coverage for accidents.  Therefore, the issue becomes whether the gross negligence required against a co-worker could potentially qualify as an accident as that term is used in insurance policies.

The Iowa Supreme Court issued a decision on June 5, 2020 in the case of T.H.E. Insurance Company v. Estate of Stephen Paul Booher that provided guidance on this issue.  The Iowa Supreme Court found that the answer to the question hinged on the specific facts of how the worker was injured, and the specific language in the insurance policy.

The Estate of Stephen Paul Booher involved an accident at Adventureland.  Stephen Booher was a loading assistant on a ride.  Stephen Booher was killed when he was jerked off his feet and into the moving belt of the ride.  Stephen Booher died from his injuries four days after the accident.

The wife and children of Stephen Booher alleged gross negligence against the co-worker who was operating the ride for a number of acts and admissions, including:  failure to check the ride before starting it, failure to make sure that Stephen Booher was not standing in a place of danger, starting the ride without first obtaining the thumbs up signal from Stephen Booher, failure to stop the ride once he became aware that Stephen Booher had fallen into a dangerous position, and failure to promptly stop the ride when he was aware that Stephen Booher was down.

The insurance company for the co-worker brought a declaratory judgment action claiming that there was no coverage for the co-worker against the claims brought by the family of Stephen Booher.  The District Court ruled in favor of the insurance company based on the reasoning that the gross negligence that Stephen Booher’s family was required to prove was effectively the same as an intentional act by the co-worker which was excluded from insurance coverage.  Therefore, the family of Stephen Booher would not be able to recover any damages against the co-worker from the insurance company.

The Booher family appealed to the Iowa Supreme Court.  The Iowa Supreme Court ruled that the District Court decision at the early stages of the case was incorrect.  The Supreme Court found that it was possible that a jury could find that the co-worker’s gross negligence was still within the scope of coverage of the insurance policy.  Therefore, the case was remanded to the District Court for trial.