An Act to Amend the Maine Workers' Compensation Act of 1992 Regarding Employee Liability
Maine Legislature, Session 131, LD 1385
Committee: Labor and Housing
Sponsors: LIBBY, POMERLEAU
Amends: 39-A MRSA §104, 39-A MRSA §104-A

Legislative Document
No. 1385
S.P. 550
In Senate, March 28, 2023
An Act to Amend the Maine Workers' Compensation Act of 1992 
Regarding Employee Liability
Reference to the Committee on Labor and Housing suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator LIBBY of Cumberland.
Cosponsored by Representative POMERLEAU of Standish.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  39-A MRSA §104, first ¶, as amended by PL 2017, c. 402, Pt. C, §109 and 
affected by PL 2019, c. 417, Pt. B, §14, is further amended to read:
An employer who has secured the payment of compensation in conformity with 
sections 401 to 407 is exempt from civil actions, either at common law or under sections 
to 908; Title 14, sections 8101 to 8118; and Title 18‑C, section 2‑807, involving 
personal injuries sustained by an employee arising out of and in the course of employment, 
or for death resulting from those injuries.  An employer that uses a private employment 
agency for temporary help services is entitled to the same immunity from civil actions by 
employees of the temporary help service as is granted with respect to the employer's own 
employees as long as the temporary help service has secured the payment of compensation 
in conformity with sections 401 to 407.  "Temporary help services" means a service where 
an agency assigns its own employees to a 3rd party to work under the direction and control 
of the 3rd party to support or supplement the 3rd party's work force in work situations such 
as employee absences, temporary skill shortages, seasonal work load conditions and special 
assignments and projects.  These Except as provided in section 104-A, these exemptions 
from liability apply to all employees, supervisors, officers and directors of the employer 
for any personal injuries arising out of and in the course of employment, or for death 
resulting from those injuries.  These exemptions also apply to occupational diseases 
sustained by an employee or for death resulting from those diseases.  These exemptions do 
not apply to an illegally employed minor as described in section 408, subsection 2.
Sec. 2.  39-A MRSA §104-A is enacted to read:
§104-A.  Liability of an employee
Notwithstanding section 104, an employee is not exempt from civil actions, either at 
common law or under Title 14, sections 8101 to 8118 or Title 18‑C, section 2‑807, if the 
employee intentionally or with gross negligence or while committing a criminal act causes 
another employee's injury or death for which compensation or medical benefits are payable 
under this Act.  The injured employee, or the legal representatives of the employee, may, 
at the employee's option, either claim the compensation and benefits payable under this Act 
or obtain damages from or proceed at law against the liable employee to recover damages.
If the injured employee elects to claim compensation and benefits under this Act, any 
employer having paid the compensation or benefits or having become liable for 
compensation or benefits under any compensation payment scheme has a lien for the value 
of compensation paid on any damages subsequently recovered against the liable employee.  
If the injured employee or the employee's beneficiary fails to pursue the remedy against the 
liable employee within 30 days after written demand by the employer, the employer is 
subrogated to the rights of the injured employee and is entitled to enforce liability in the 
employer's own name or in the name of the injured party, the accounting for the proceeds 
to be made on the basis provided in this section.
If the injured employee or the employee's beneficiary recovers damages from a liable 
employee, the injured employee shall repay to the employer, out of the recovery against 
the liable employee, the benefits paid by the employer under this Act, less the employer's 
proportionate share of cost of collection, including reasonable attorney's fees.
If the employer recovers from the liable employee damages in excess of the 
compensation and benefits paid or for which the employer has become liable, then any 
excess must be paid to the injured employee, less a proportionate share of the expenses and 
cost of actions or collection, including reasonable attorney's fees.  Settlement of any such 
subrogation claims and the distribution of the proceeds therefrom must be approved by the 
court in which the subrogation action is pending or to which it is returnable; or if not in 
suit, by the board.  When the court in which the subrogation action is pending or to which 
it is returnable is in vacation, the judge of the court or, if the action is pending in or 
returnable to the Superior Court, any Justice of the Superior Court may approve the 
settlement of the action and the distribution of the proceeds.  The beneficiary is entitled to 
reasonable notice and the opportunity to be present in person or by counsel at the approval 
proceeding.
For purposes of this section, "gross negligence" means willful, wanton and reckless 
conduct affecting the life or property of another.
SUMMARY
This bill amends the Maine Workers' Compensation Act of 1992 to provide that an 
employee who intentionally or with gross negligence or while committing a criminal act 
causes another employee's injury or death is not exempt from civil actions, either at 
common law or under the Maine Revised Statutes, Title 14, sections 8101 to 8118 or Title 
18‑C, section 2‑807.  This bill allows the injured employee, or the legal representative of 
that employee, to either claim the compensation and benefits payable under the workers' 
compensation laws or obtain damages from or proceed at law against the offending 
employee to recover damages.  
If the injured employee or the employee's beneficiary recovers damages from an 
offending  employee, the injured employee shall repay to the employer, out of the recovery 
against the offending employee, the benefits paid by the employer under the workers' 
compensation laws, less the employer's proportionate share of cost of collection, including 
reasonable attorney's fees.
If the injured employee elects to claim compensation and benefits under the workers' 
compensation laws, any employer having paid the compensation or benefits or having 
become liable for compensation or benefits under any compensation payment scheme has 
a lien for the value of compensation paid on any damages subsequently recovered against 
the offending employee. If the employee or the employee's beneficiary fails to pursue the 
remedy against the offending employee within 30 days after written demand by the 
employer, the employer is subrogated to the rights of the injured employee and is entitled 
to enforce liability in the employer's own name or in the name of the injured party.
If the employer recovers from the offending employee damages in excess of the 
compensation and benefits paid or for which the employer has become liable, then any 
excess must be paid to the injured employee less a proportionate share of the expenses and 
cost of actions or collection, including reasonable attorney's fees.