Independent Contractor Construction Injuries
UPDATED: June 19, 2018
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When an independent contractor is injured on a construction site, there is a general pattern of analysis that occurs in every case:
Who Is Responsible?
First, the independent contractor’s status is confirmed. After confirmation of independent contractor status, an inquiry is made by the general contractor (who is responsible for managing the project) regarding the details of the accident that caused the injury. Such investigations can be very complex depending on the number of people involved and the severity of the accident. During the investigation, a determination is made as to who controlled the independent contractor’s actions. This is a very important determination, as it may go to the issue of liability in the event of a lawsuit, and it also involves issues of worker’s compensation.
Determining who is responsible revolves around two issues:
- Who controlled the injured contractor’s actions? and,
- Was there negligence on the part of any entity that caused or contributed to the injury?
Worker’s compensation benefits are generally viewed as an exclusive remedy. So if the independent contractor is covered under a worker’s compensation policy, the injured worker would collect compensation and could not file suit. If the independent contractor is not covered under worker’s compensation, any number of entities—from the customer to the general contractor to another independent contractor on site—could potentially be held responsible.
On large construction sites, general contractors carry major insurance policies to cover job site injuries, and coverage often extends to independent contractors retained by the general contractor. Those same general contractors usually require independent contractors they hire to maintain their own insurance policies, naming the general contractor as an additional insured. On smaller jobs, and dealing with smaller companies or homeowners, there may be little or no insurance available. It is up to the independent contractor to obtain his or her own insurance, and likewise, the hiring party should only hire insured contractors.
If negligence on the part of another contractor or the customer caused the independent contractor’s injury, it is possible that the independent contractor could collect on insurance policies held by others as opposed to collecting on their own. This also protects independent contractors who do not have their own insurance. Most homeowner policies cover injuries to contractors to some extent.
If the injured contractor was negligent, he may be limited in his ability to collect. Allegations of negligence—as opposed to purely accidental situations—create innumerable barriers to recovery for a construction injury, and almost always result in litigation amongst customers, contractors and insurance companies. Construction accident claims and lawsuits are complicated when the injured party is at fault, and should always be handled by an attorney in such circumstances.
The issue of licensing could also come into play. Depending on where the accident occurred and the job the injured contractor was performing, a license may have been required to perform the work. In some jurisdictions, an un-licensed contractor is severely limited in his recovery, and may forfeit any potential insurance proceeds for failure to comply with licensing requirements. Some contractors (painters, for example) have no licensure requirements, so it is not an issue. Licensing requirements vary greatly from jurisdiction to jurisdiction, and a local attorney would be best equipped to discuss this further.
Consider the following scenarios regarding how an independent contractor may recover for on-site injuries:
In the first example, the independent contractor is an electrician hired by a homeowner to install a ceiling fan. The electrician slips and falls from a ladder, injuring his arm when he hits the ground. He is not legally required to carry worker’s compensation insurance, but does have his own liability policy for work he performs. His medical bills are minimal and paid by his own insurance company.
In the second example, the same electrician is an employee of Electrical Contractors Inc., a large independent electrical contractor that focuses on new home construction. EC Inc. was hired by a general contractor to install hundreds of ceiling fans in a newly built subdivision. The general contractor controls the electrician’s work with regard to the where’s and when’s the fans are to be installed. Because the project is running late, the general contractor has the electricians working on a tight schedule, usually working at the same time painters are working.
While installing a fan, the electrician trips over a bucket of paint left in the room and falls down a stairwell. Assuming, for the moment, that worker’s compensation is not available, the electrician looks to his employer to pay for his injuries. EC Inc. files a claim with its insurance company, who performs an investigation and determines that the general contractor’s policy should cover the injuries. The general contractor accuses the painter of negligence for leaving the bucket behind, the electrician and EC Inc accuse the general contractor of negligence for scheduling the painters and electricians to work at the same time, and the whole thing turns into a lawsuit, and a judge or jury decides who is responsible for compensating the electrician for the injuries.
Finally, take the prior set of facts and change one thing: EC Inc. is required by law to carry worker’s compensation insurance. And EC Inc. is in compliance with the law. As a result, the employee collects worker’s compensation benefits as dictated by state law.
Hiring a Lawyer
When an independent contractor is injured on a construction site, there any number of ways the injured party may be compensated or denied compensation for his injuries. The insurance agreements in place (or lack thereof) often dictate the sequence of events. The best advice for any independent contractor is to make sure he carries insurance for himself, and has a relationship with a competent local construction accident attorney who can guide him through a potentially complicated process.