When is a Contractor also the Subcontractor, and are both protected by the Exclusivity Doctrine?
A new wrinkle in the area of Statutory Employer/Employee
Whenever I say “statutory employee/statutory employer,” eyes glaze over, expressions become frozen, and
|Post by Founding Partner Stan Lacy|
people start looking for the door. It is not the most interesting topic to talk (or write) about, but a case has been decided in the Supreme Court that you should know about. So drink some coffee, exercise your smile muscles, and bolt the door from the outside. Here is what you need to know about Poch v. Bayshore Concrete Products/South Carolina, Inc., Supreme Court Opinion No. 27304 (filed August 28, 2013).
First, Columbia workers’ compensation is the exclusive remedy an employee has against an employer for an injury by accident in the workplace. However, there is an exception to that rule, and it’s spelled out in §42-1-540 of the South Carolina Workers’ Compensation Act.
Provided, however, this limitation of actions shall not apply to injuries resulting from acts of a subcontractor of the employer or his employee or bar actions by an employee of one subcontractor against another subcontractor or his employees when both subcontractors are hired by a common employer.
Let me explain this exception with an example. Contractor is building a house. He contracts with Framer, Electrician and Plumber to complete the framing, the wiring and the plumbing. Electrician’s helper is injured when Framer’s employee drops a hammer on his head. The helper collects workers’ compensation benefits from Electrician. Once the helper collects benefits from Electrician, Contractor is also protected by the exclusivity doctrine. If Electrician does not have comp coverage, then Helper can collect benefits from Contractor. However, in this example, Framer cannot claim the exclusive remedy and is subject to a civil suit in negligence by the helper. Why? Simply put, Framer is in no way responsible for payment of workers’ compensation benefits to Electrician’s helper, so Framer should not enjoy the Act’s protection.