Illegal Alien Workers Can Recover Lost Wages in an Accident Lawsuit


Undocumented alien workers can recover lost income in a personal injury lawsuit according to a recent decision, Coque v. Wildflower Estates Developers, No. 18365/01, App. Div., 2d Dep’t, Nov. 12, 2008.

In this case Mr. Coque, an illegal alien from Ecuador, immigrated to the United States in 2000.  He was hired as a construction worker.   Mr. Coque submitted a false Social Security card to his employer.  The employer did not check Mr. Coque’s immigration papers and other proofs of identity and eligibility for employment as required under the federal Immigration Reform and Control Act of 1986 and the state Labor Law.

   Mr. Coque became a paraplegic in a very serious construction accident.  He fell from a makeshift scaffold when a bundle of shingles weighing 80 pounds fell on him.  This caused the scaffold flooring to break, and Mr. Coque fell 25 feet to the basement.  The jury found in his favor and made an award for lost income of $102,000.  It also awarded substantial amounts for pain and suffering and medical expenses.  This was a Labor Law 240 (1) case.  See some of our prior post on Labor Law cases here and here.

Defendants argued that Mr. Coque’s submission of a false Social Security number prevents him from recovering lost income.

The Appellate Division refused this argument.  The employer’s failure to verify the employee’s work eligibility does not preclude the undocumented alien employee from recovering for lost wages.

We think that this is a sound decision.  The reality in New York is that a good number of unskilled construction workers are undocumented aliens.  If they were precluded from recovering lost income, especially when they had paid taxes, then such injured workers would be unduly punished in the event of a serious injury.  Such injured workers would be placed on the welfare rolls.  

It is noteworthy that the jury only awarded Mr. Coque $42,000 for past lost income and $60,000 for future income for a period of 5 years.  The man became a paraplegic and had no hope of returning to work!  This award appears to be rather small in view of the facts, but the appellate court sustained it.  My guess is that jury may have taken into consideration his illegal status and did not want to “reward” him on the lost wages part of the case.  Therefore, the jury limited future lost income to 5 years although it found future pain and suffering for 42.7 years.  Typically, the lost income on a paraplegic construction worker would be a very high number assuming that he had a good number of working years ahead of him.

We have handled many construction cases involving Labor Law 240 (1), lost income, pain and suffering, and medical expense.  We recently settled a construction case for $1,500,000.  If you have been involved in a construction accident please call me to discuss your accident at 800-851-1434.

Mark E. Seitelman, 11/18/08, www.seitelman.com, letters@seitelman.com.

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