Comp not exclusive remedy in this case

January 5, 2009 by Fred Hosier

Posted in: In this week's e-newsletter, Injuries, Latest News & Views, Workers' comp

A worker injured at a construction site sued his employer. The company said it couldn’t be sued because workers’ comp is the exclusive remedy for injured workers.

But the California Court of Appeal disagreed with the company’s argument because the worker was an independent contractor.

Jeffrey Tverberg was hired by a subcontractor to install a canopy at a gas station. He fell into a hole at the construction site and was injured.

He sued the general contractor and its subcontractor.

The contractor argued that California case law holds that the hirer of a contractor owes no duty of care to the contractor’s injured worker because his remedy is workers’ comp.

But the court said that case law wasn’t applicable because the plaintiff was an independent contractor, not an employee.

Now the case will either go to trial, or the company will try to reach a settlement. Both options could be quite expensive.

Cite: Tverberg v. Fillner

Tags: contractor, court, injured, Workers' comp

2 Responses to “Comp not exclusive remedy in this case”

Mike Benedeck Says:
April 6th, 2009 at 10:14 am
I inform most employees who have lost time injuries about what they should expect to receive.
Carl Says:
November 18th, 2009 at 4:05 pm
The workers compensation laws were put in place to prevent this very situation where employees and employers litigated workplace injuries in the courts. It was considered a fair arrangement for both sides and far better than going to court.

The case above, is just a technical way around the workers comp. laws by looking for someone to sue who is not the direct employer, thereby using a trick to get settlement through litigation as the way to obtain compensation for an injury.

If this worker was truly an independent contractor, he should get insurance on himself or take responsibility for his own injuries, just like he would if he were working on his own job and not for a subcontractor who was under a general contractor.

Now the general contractor is put in the position of having to defend in court and maybe having to prove contributory negligence, or force the “independent contractor” to prove that he is legally qualified to be considered an independent contractor and if not counter sue for misrepresentation and unjust enrichment, or sue the subcontractor or some other approach.

I have noticed over 30 plus years experience, that a well written contract would usually prevent this type of legal entanglement.