Historically, in employee injury cases where the main defendants’ assets and coverage are insufficient to satisfy the potential money judgment, and where an unlimited source of insurance monies exist in the form of the third-party defendant employer’s workers’ compensation insurance, plaintiff attorneys frequently inject what has been come to be known as the “bucket brigade.”
The bucket brigade is a theoretical recovery procedure—more accurately described as a “scheme”—by which a plaintiff attempts to circumvent the exclusivity of workers’ compensation by indirectly recovering monies from the employer that he cannot recover directly. In other words, when a main defendant makes a payment to the plaintiff in excess of its apportioned share of fault (i.e., that triggers either an indemnification or contribution right), the plaintiff contends that the main defendant’s collection of reimbursement monies from the third-party defendant employer on that right is itself collectable through judgment-enforcement measures. This creates a recovery mechanism whereby each collection by the plaintiff creates a new damage to the main defendant who ‘refills the bucket’ that plaintiff has emptied by asserting its right to indemnification or contribution against the third-party defendant. But, in reality, this theoretical bucket scheme procedure of paying down a plaintiff’s judgment through employer liability policy monies funneled through the main defendants would, for all practical purposes, amount to an indirect recovery by a plaintiff against his employer in violation of the exclusivity of the workers’ compensation remedy.