By: Sarah G. Hegener

This week, a Georgia jury began hearing arguments and testimony in a wrongful death suit filed by the family of a stunt actor who died on the set of AMC television series, The Walking Dead. John Bernecker died two years ago after falling more than 20 feet while performing stunts for the show. Bernecker’s family named production company, Stalwart Film, among others, as a defendant in the wrongful death suit and filed the claim in the Superior Court of Gwinnett County.

Attorneys for the defense have made the pivotal argument that Bernecker’s family is not entitled to pursue a wrongful death claim because Bernecker was an employee of Stalwart Film. In such a case, the matter must be handled exclusively under the Georgia Workers’ Compensation Act. On the contrary, Bernecker’s attorneys argue that he was not Stalwart’s employee, but rather, an independent contractor who is not subject to Georgia’s workers’ compensation laws.

Determining Bernecker’s pre-accident employment status is a critical part of this litigation. Under the Workers’ Compensation Act, workers’ comp benefits provide an exclusive remedy for employees injured on the job. This means that an employee’s right to seek workers’ comp benefits precludes his right to pursue any other legal remedies against his employer. This includes damages for wrongful death.

The catch is that the Workers’ Compensation Act only applies to employees, and not independent contractors. Bernecker’s attorneys argue that he was an independent contractor of Stalwart Film, and therefore, he is not to limited workers’ comp benefits. Such a finding would allow his family continue pursuing their wrongful death claim. Damages for wrongful death can far exceed the benefits available to a workers’ comp claimant because in a wrongful death suit, the deceased’s family can be compensated for pain and suffering, and the judge may even award punitive damages. This makes determining whether Bernecker was an employee or an independent contractor a critical decision in this case.