In any work-related accident, the sole remedy a worker has against an employer is workers’ compensation. The system is supposed to provide fast, no-fault financial relief when injuries arise out of and occur in the course and scope of one’s work.
However, this exclusive remedy in workers’ compensation is not applicable to certain third parties. So while you can’t sue your employer, you can take action against, say, the driver of the car that struck you or the manufacturer of the machine by which you were injured.
On a construction site, the question of who is a “third party” and who is not can become muddied. There are so many contracts, subcontracts and various entities involved, it can become tough to parse out the issue of liability. That’s why you must have an experienced construction accident lawyer to help walk you through it.
In a recent case out of Stolz v. J & B Steel Erectors, Inc., in Ohio, an injured construction worker sought remedy from a third party subcontractor. The question became whether that subcontractor, which was enrolled in a self-insured construction project plan, was immune from a personal injury lawsuit for workplace injuries suffered by employees of other enrolled contractors on the very same project. The answer: Yes.
Of course, while this Ohio Supreme Court case doesn’t have any direct bearing on the law in North Carolina or South Carolina, it is worthwhile to note how other high courts decide these important issues, as their sister courts will often turn to them for guidance on similar matters.
According to court records, plaintiff worked for a concrete finisher on a casino project in Cincinnati. A company called “Messer” was the general contractor and “Jostin,” worker’s employer, was a subcontractor.
An accident on that job site resulted in injury to plaintiff, who later filed a personal injury lawsuit against Messer and five other subcontractors (not Jostin, from whom he’d already collected workers’compensation benefits.). He claimed each subcontractor had responsibilities related to the project.
Before the accident, Messer received permission from the Ohio Bureau of Workers’ compensation to act as a self-insuring employer, meaning it was responsible for providing workers’ compensation coverage to its own employees, as well as employees of enrolled subcontractors on the project. That included Jostin, as well as three of the other subcontractors named in plaintiff’s injury lawsuit.
Those three subcontractors plus the general contractor moved for summary judgment on grounds they were immune from the negligence claim under state workers’ compensation laws pertaining to exclusive remedy. Trial court granted summary judgment to the general contractor on this issue, but denied it for the three subcontractors.
Following this, the three subcontractors asked the court (U.S. District Court for the Southern District of Ohio, Western Division) to certify a question to their Ohio Supreme Court regarding their potential for liability under these circumstances.
The court noted that a subcontractor who enrolls in the general contractor’s self insurance program (allowed only under certain circumstances, primarily large construction projects) doesn’t pay workers’ compensation premiums to the state for covered employees. Plaintiff argued this cost is deducted from their construction project bids.
But despite plaintiff’s argument that subcontractors are only immune from claims brought by their own employees, the court ruled all subcontractors enrolled in the same self insurance program for the same project are immune from litigation filed by any covered employee – even from another subcontractor.
In this case, plaintiff still may seek damages against the other two subcontractors who were not enrolled.
Third party liability stemming from construction accidents is always an option that should be explored because unlike workers’ compensation benefits, successful plaintiffs may be entitled to damages beyond just medical expenses and lost wages (i.e., pain and suffering, emotional distress, loss of consortium, punitive damages, etc.).
If you have been injured at work in North Carolina, contact the Lee Law Offices at 800-887-1965.
Stolz v. J & B Steel Erectors, Inc., April 19, 2016, U.S. District Court for the Southern District of Ohio, Western Division
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Tchikobava v. Albatross Express – Worker Awarded More TTD Benefits, April 20, 2016, Construction Accident Lawyer Blog