Is a Worker's Suit Blocked by the Exclusive Remedy Provision?
Is a worker's suit blocked by the exclusive remedy provision?
A general contractor working on the construction of an industrial facility in Virginia contracted with a subcontractor to hoist structural steel beams into position at the site. A worker employed by the general contractor, acting within the scope of his employment, was directing the steel beams into place as they were lifted by the subcontractor's crane. While hoisting a beam, the crane tipped over and lost control of the beam, causing it to swing into a man-lift where the worker was standing. The beam struck and injured the worker.
The worker sued the subcontractor and its employee, the crane operator. The subcontractor asserted that the worker's exclusive remedy was in workers' compensation. The parties agreed that the subcontractor did not have workers' compensation insurance as required, the worker received workers' compensation benefits from the general contractor, the subcontractor would have ordinarily been deemed the worker's statutory co-employee, and the suit would have been barred if the subcontractor carried workers' compensation insurance. The issue was whether the subcontractor's lack of workers' compensation insurance deprived it of the protection of the exclusive remedy provisions.
A Virginia trial court ruled that the subcontractor was not protected by the exclusive remedy provisions, and the suit could go on. The subcontractor appealed.
Was the trial court correct in finding the suit was not barred?
A. Yes. Statutory co-employees are not entitled to protection from the exclusive remedy provisions.
B. Yes. The subcontractor's lack of workers' compensation insurance blocked its exclusivity protections under the workers' compensation system.
C. No. Allowing the suit to proceed could result in a double recovery for the worker.
How the court ruled: C. In a case of first impression, the Virginia Supreme Court held that the worker's suit was barred by the exclusive remedy provision. David White Crane Service, et al. v. Howell, No. 100981 (Va. 09/16/11).
The court pointed out that the worker already made a full recovery of workers' compensation benefits from the general contractor. Allowing the suit to proceed would contravene the exclusivity provisions and, if successful, would result in a double recovery for the worker.
A is incorrect. The court explained that the parties were statutory co-employees. They were both engaged in the same construction project at the time of the accident and were engaged in the trade, business, or occupation of the general contractor. Although statutory co-employees are not an injured worker's statutory employer and are therefore not liable for paying workers' compensation benefits, they come within the canopy of the workers' compensation system. The court explained that because the legislative purpose of workers' compensation is to include all those engaged in the work that is a part of a general contractor's trade, business, or occupation, statutory co-employees are entitled to protection from the exclusivity provisions. The court said the worker's sole remedy for work-related injuries caused by a statutory co-employee was to bring a claim against his own statutory employer, the general contractor.
B is incorrect. The court said that the worker could not bring suit against his statutory co-employee. A statutory co-employee's lack of workers' compensation insurance was immaterial because it could not be liable to the worker for benefits.
Editor's note: This feature is not intended as instructional material or to replace legal advice.
October 27, 2011
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