D & D Tire v. Ouellette – Workers’ Comp Immunity for Contractor Negligence

If you are injured at work as a result of negligence from a co-worker, that co-worker would be protected from a personal injury lawsuit per the exclusive remedy provisions of South Carolina workers’ compensation law.
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This is the provision that shields the employer and any employees from litigation, even if they acted with negligence. (Intentional acts may be different.)

In some cases, contractors could claim co-worker status (or “statutory co-employee” and therefore also be protected under exclusive remedy provisions. But this is not an absolute.

In fact, there have been a number of cases in which independent contractors have been successfully sued for personal injury claims, even after the employee has collected workers’ compensation.

In South Carolina, courts will look to South Carolina Code 42-1-400 and 42-1-410, which spell out liability of owner to workmen of subcontractor and liability of contractor to workmen in subcontractor, to determine liability.

South Carolina case law has established that the protection of exclusive remedy doesn’t extend to independent contractors performing work pursuant to their contract with the employer of the injured person.

Although states vary in their interpretation and requirements for workers’ compensation, the Nevada Supreme Court recently handled this same kind of issue in the case of D & D Tire v. Ouellette.

Court records note in Nevada, as in South Carolina, employers and co-employees of persons injured in the course of employment are immune from injury litigation by that worker. Also, SOME subcontractors and independent contractors may be accorded that same status, but not when that contractor is performing a major or specialized repair that the injured worker’s employer isn’t equipped to handle on its own.

In this case, claimant was working at a gold mining company doing tire service work, including installation, repair, removal and replacement of tires on various pieces of mining equipment. The employer also contracted with a commercial tire retailer.

Claimant in the course of his work noted a problem had developed with a boom truck, he took it to the tire contractor, which then contacted an independent repair company. That company sent a repair man, who was assisted by the mining company worker as well as the a commercial tire worker.

After the first repairs were completed, the contractor filled the truck with oil. Then, employee of the contractor backed the truck up. In so doing, he struck claimant and pinned him against a dumpster, causing injury to his shoulder.

Claimant not only sought workers’ compensation, but also filed a personal injury claim against the contractor.

Jurors returned a judgment in favor of claimant, and defendant appealed, arguing it was an “employee” of claimant’s employer. The Nevada Supreme Court, upon review, disagreed. The job being done was specialized, not something the employer could do in-house, and therefore, defendant was acting as an independent contractor and not as a statutory co-employee. Thus, a third-party lawsuit was appropriate.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
D & D Tire v. Ouellette, July 2, 2015, Nevada Suprem Court

More Blog Entries:
Workers’ Compensation Death Benefits Approved for Company President’s Survivors, July 22, 2015, Greenville Workers’ Compensation Attorney Blog

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