Shared Immunity

Accidents and incidents are far too common on construction sites. When a construction worker is injured, her employer typically has workers’ compensation insurance that kicks in and benefits are offered to the injured employee. But what happens when that injured employee pursues a civil action against the general contractor, other subcontractors, or both, as well as against their employees and agents?

In Florida, workers’ compensation coverage includes an immunity clause that protects employers from their employees suing them for simple negligence. In the construction context, Florida law is clear: Under certain and specific circumstances, the injured construction worker’s employer’s immunity can extend to those general contractors and subcontractors as well.

General Contractors

Pursuant to Fla. Stat. 440.10 and 440.11, in the construction field, the immunity clause transfers to a general contractor under a theory of vertical privity if a subcontractor’s employee is injured and receives workers’ compensation benefits from her employer (the subcontractor), but only if one of the following conditions are met:

• The general contractor must also have workers’ compensation insurance that potentially would have covered the subcontractor’s injured employee, even if not used for that incident; or
• The general contractor must ensure that all involved subcontractors hired for a project have workers’ compensation insurance.

Notably, in Florida, single-employee businesses are exempt from the requirement of obtaining workers’ compensation coverage. Many Florida general contractors are single-employee businesses and, consequently, are leaving themselves open to liability for simple negligence claims. If a general contractor is a single-employee business, exempt from obtaining workers’ compensation insurance coverage, it is imperative that the general contractor ensure (in writing) that all subcontractors hired to work on-site have their own workers’ compensation insurance. This includes subcontractors of those subcontractors.

Vertical privity is a powerful defense against civil claims by injured construction workers, however, there is always an exception to the rule. The exception to vertical privity is an intentional act by the general contractor to cause the injury. If the evidence demonstrates that the general contractor acted in an intentional manner that caused or contributed to the injury, the general contractor may still be liable in a civil action.

Intentional action is the key to any defense. Oftentimes, it is the employee herself who causes the accident, or her employer, or even another subcontractor. It is very difficult to prove the intent by the general contractor to engage in an activity that it knows would cause injury to the workers on site.

Further, when accidents and injury occur on-site, it is pertinent to have OSHA notified immediately by the general contractor. An OSHA investigation and conclusion as to the contributing causes of an injury can go a long way in defending against a civil case. If OSHA were to find that the general contractor is not liable, it becomes even more difficult for a plaintiff to prove that the general contractor engaged in an intentional act that caused the subject injury.

Subcontractors

Workers’ compensation immunity has been broadly expanded by the Florida legislature to include subcontractors working on a site, precluding an employee of one contracting entity injured on the job from suing another contracting entity working at the same site in tort. Thus, Fla. Stat. 440.10 and 440.11 not only provides potential immunity to general contractors, but also it provides a gateway to immunity for subcontractors from claims of simple negligence by injured construction workers of other subcontractors.

Naturally, there is a test that is applied to determine whether or not the immunity travels horizontally from one subcontractor (who provided the workers’ compensation benefits) to another (who is being sued civilly by the injured construction worker):

1. Did the subcontractor being sued civilly secure workers’ compensation insurance for its employees or has the general contractor secured such insurance on behalf of the subcontractors on that job?
2. Did the subcontractor’s own gross negligence cause or was a major contributing factor to the alleged injury?

Where general contractors survive tort claims with a showing of lack of intent, fellow subcontractors must show that their employees/agents did not act in gross negligence in order for the workers’ compensation immunity to travel and protect them from civil liability as well.

Gross negligence requires plaintiff to meet a much higher standard than ordinary negligence claims. In Florida, simple negligence is defined as “that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property.” [See Weller v. Reitz, 419 So.2d 739, 741 (Fla. 5th DCA 1982)]. Contrary to simple negligence, a claim for gross negligence carries a much higher burden. Gross negligence is predicated on a showing of chargeable knowledge or awareness of the imminent danger, and presupposes the existence of:

• A composite of circumstances that, together, constitute an imminent or clear and present danger amounting to more than normal and usual.
• An act or omission that evinces a conscious disregard of the consequences, as distinguished from a careless disregard as in simple negligence. [See Hoyt v. Corbett, 559 So.2d 98, 100 (Fla. 4th DCA 1990); Vallejos v. Lan Cargo S.A., 116 So. 3d 545, 545 (Fla. 3d DCA 2013)].

The key to any and all of the immunities discussed within this article is the acquisition of workers’ compensation insurance. It is key that all parties maintain a valid and viable workers’ compensation policy to cover their employees from injury on the job, including injury on a construction site. That is the first step to the protection one can receive from being held civilly liable for the injuries that may occur on a construction site.

By pursuing and receiving workers’ compensation benefits, the injured party is considered to have elected her remedy to the exclusion of tort remedies. Intentional acts and gross negligence would be the only exception to the applied immunity.

It is also very important to do all that one can to comply with local rules and regulations and OSHA safety requirements to attempt to prevent injuries in the first place.

Taking all necessary precautions to prevent injury and to provide medical treatment should an injury occur are vital to the prevention of civil lawsuits for injuries sustained on a construction site.