Indiana Court Holds That Undocumented Workers Cannot Recover Damages For Lost Future Earnings
By: Lyndsay Ignasiak
March 2016 - An Indiana trial court recently decided that an undocumented worker cannot seek lost future earnings in a tort action, given that, at least at the time of the injury, the plaintiff had no legal right to work in the United States. That decision is currently on review before the Indiana Court of Appeals.
In Escamillia v. Shiel Sexton Company, No. 54A01-1506-CT-00602 (Ind. Ct. App., filed Jun., 16, 2015), Plaintiff Noe Escamilla claims that in 2010, he injured himself at a worksite in Crawfordsville, Indiana while lifting a heavy piece of stone. Escamilla was employed by Masonry by Mohler, which was a subcontractor for Shiel Saxton Company. Because this incident involved an injury at work, Plaintiff’s only course of action against his employer would have been through the Indiana Workers' Compensation Act. Thus, Escamilla sued the general contractor, Shiel Saxton, who he claims was responsible for safety on the subject worksite.
Among other relief, Escamilla seeks recovery for future lost earnings against Shiel Saxton, claiming that he will never again be able to work in the construction industry. Before the trial court, however, Shiel Saxton argued that Escamilla is not entitled to future lost earnings because he is not legally entitled to work in the United States. Escamilla in turn filed a motion in limine to bar evidence relating to his immigration status. Ultimately, the trial court granted Shiel Saxton’s motion, finding that Escamilla’s immigration status prevented him from seeking recovery for lost future earnings from the jury.
The Indiana Court of Appeals accepted the interlocutory appeal to consider three issues: (1) whether an undocumented worker who obtained employment through false means can recover lost future earnings in a personal injury action against a third party; (2) if so, whether the undocumented worker is entitled to wages at rates available in the United States or the wage rates available in such person’s home country; and (3) if the undocumented worker can submit evidence of lost wages at an American rate, is evidence of his or her immigration status relevant and admissible. The case has been argued, and is fully briefed and before the Indiana Court of Appeals for ruling.
Approximately twenty states that have considered this issue have found that lost future wages are recoverable by undocumented workers. The arguments typically surround the purpose and effect of the Immigration Reform and Control Act (IRCA), 8 U.S.C. § 1324a, et seq., which is a federal statute enacted to curtail illegal immigration by eliminating job opportunities for undocumented workers by requiring documentation or proof of eligibility to work prior to hire. Most state courts to consider the issue have determined that IRCA does not preempt state tort law, and that damages can be awarded under state statutes. A number of states that allow recovery of future lost wages for undocumented workers, however, have allowed a jury to consider a plaintiff’s immigration status in determining the amount of lost wages to award. For example, in Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1259 (N.Y. 2006), the New York Court of Appeals found that “any conflict with IRCA’s purposes that may arise from permitting an alien’s lost wage claim to proceed to trial can be alleviated by permitting a jury to consider immigration status as one factor in its determination of the damages, if any, warranted under the Labor Law.” (internal citation omitted). This would include evidence of a worker’s illegal status, as well as evidence that the litigant had subsequently secured a legal right to work in this country. Meanwhile, we await a decision from the Indiana Court of Appeals to determine the status of this issue in Indiana.
While the Escamilla decision has the potential to resolve the issues discussed above, many other issues relating to the admissibility of a plaintiff’s immigration status remain unchallenged in Indiana. For instance, it is unclear whether a plaintiff’s status as an undocumented worker or a plaintiff’s actions in falsifying documents to unlawfully obtain employment can be used for purposes of impeachment. As with the recovery of future lost earnings by undocumented workers, however, the state courts to consider this issue have generally found that a litigant’s immigration status is inadmissible because the prejudicial effect outweighs the probative value of such information. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (2010) (finding that “a witness’s immigration status is not admissible to impugn the witness’s character for truthfulness” in a civil action). Nevertheless, the argument remains a viable litigation strategy until the Indiana courts or legislature determine otherwise.
If you have any questions regarding the status of the Escamilla v. Shiel Saxton Co. decision, or the admissibility of a plaintiff’s immigration status at trial, please contact a member of our General Casualty/Excess & Surplus Lines, D&O and Employment, or Workers’ Compensation Practices Liability Groups.