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If you are an employee and suffered an injury while at work, you may be eligible to receive a large sum of compensation. Give our workplace injury lawyers a call today to schedule your confidential consultation. We can be reached at 800-893-9645.
Introduction
What is the 1996 Onmibus Workers’ Compensation Reform
Act (WCRA)? What do I need to know about it?
In the typical construction accident case, the
injured worker is barred from suing his/her employer in exchange for receipt of
Workers’ Compensation (WC)
benefits. However, the injured employee IS allowed to sue other
responsible parties, normally the property owner and/or the general contractor
(GC) (assuming the injured party is not employed by the GC). As is often the
case, the owner and/or GC will implead the injured party’s employer since they
usually do not know what is happening at the job-site. As you can see, the
injured party’s employer is not shielded from all liability by the provisions
of the Workers’ Compensation Law Section 11 (WCL), which was designed to
insulate them from direct lawsuits by their employees, not third parties.
1996
Onmibus Workers’ Compensation Reform Act
As a result of the foregoing situation, the
legislature enacted the 1996 WCRA on July 12, 1996, which amended Section 11 to
the WCA. The WCRA prohibits those being sued by the injured employee from
bringing claims against the plaintiff’s employer, unless one of the following
criteria is met:
1
The plaintiff
sustains a statutorily defined “grave injury”, or:
2
The employer is
contractually obligated to the owner and/or General Contractor for contribution
or indemnification.
Clearly, this changes things significantly, because
if these conditions are not met, the owner(s) and/or general contactor will, in
effect, be held strictly liable even though they may not be at fault, or bear
only a small portion of liability.
A,
What is a “Grave Injury”?
Workers’
Compensation Law Section 11 defines a “grave injury” as the following:
“death, permanent loss of use of or amputation of an
arm, leg, hand, foot, loss of
multiple fingers (more than one), loss of multiple toes, paraplegia, or
quadriplegia, total and permanent blindness, total and permanent deafness, loss
of nose, loss of ear, permanent and severe facial disfigurement, loss of index
finger or, an acquired injury to the brain caused by an external physical force
resulting in permanent total disability”
[WCA
Section 11].
The courts have held that this “list” of grave
injuries is full and complete; not merely illustrative, [Castro v
United Container Machinery Group Inc., 96 NY 2d 398, 402 (2001)]. Not surprisingly, the purpose of the
amendment was to curb litigation by creating an exclusive and narrowly drawn
list of qualifying injuries.
Interestingly, those seeking to implead the plaintiff’s
employer must now argue that the plaintiff has sustained a grave injury, as
opposed to usually denying the plaintiff was injured, or was not badly injured.
B.
Contractual Indemnification
Absent
a grave injury, the only other mechanism by which to implead the plaintiff’s
employer is to show the employer was contractually obligated to do so which is
defined as:
“For the purposes of this section, the terms
indemnity and contribution
shall not include a claim or cause of action for
contribution or indemnification based upon a provision in a written contract
entered into prior to the accident or occurrence by which the employer had
expressly agreed to contribution to or indemnification of the claimant or
person asserting the cause of action for the type of loss suffered”
[WCA Section 11].
In order to determine if the contractual
indemnification provision is enforceable, one must look at: a) the facts underlying the accident, and,
b) the four corners of the contract which will determine the parties’ intent.
While the contract is usually executed prior to the commencement of work and
the subject accident, sometimes the contract is executed afterwards but
contains retroactive language. In addition to the contract, General Obligations
Law Section 5-322 holds that contracts exempting owners and/or contractors from
their own negligence are void (Check for any changes). Such an agreement would make
subcontractors the insures of the owners and/or GC’s.
C. How To Measure Damages When The Employer
Fails To Obtain Insurance Required By The Construction Contract
Background:
Prior to April 26, 2001, a subcontractor could be held liable for all damages,
including the liability of the general contractor to the plaintiff, where the
subcontractor failed to procure insurance for the benefit of the GC or owner as
agreed to [Kinney v G.W. Lisk Company, Inc., 76 NY2d 215 ]1990)]. Check
Cite Subsequently, the Court of Appeals has held (in a landlord/tenant
case, witch was extended to Labor Law cases) that the landlord could recover
his out of pocket costs (I.e., the cost of procuring his own liability policy)
from the tenant who failed to name the landlord as an additional insured as
agreed to by the parties [Inchaustegui v 666 5th Avenue Limited
Partnership, 86 NY2d 111 (2001)]. CHECK SITE
D.
The One and Two Family Homeowners Exemption
Sections 240 and 241(6) of the Labor Law exempt
owners of one and two family homes who contract to have work done on their
premises, but who do not “direct or control” the work, or where the work is
being performed for commercial purposes. The terms “direct” or “control” have
been interpreted very narrowly by the courts. The protection of the exemption will be lost where the homeowner supervises the “method and
manner” of the work being
performed.
Determining whether the exemption applies
becomes murkier when the “site and purpose” of the accident is being used for both residential and commercial (mixed
use) purposes, and not simply as a one or two family home, or for commercial
purposes. Courts have held that the exemption will apply where the “site and
purpose” test shows that the work being performed “directly relates to the
residential use of the home” Bartoo v Buell, 87 NY2d 362, 368, The
exemption was also applied in a case
where the work performed “wholly related” to the residential nature of the
home, and where the effect on the commercial portion of the home was merely “incidental
or negligible”, Muniz v Church of Our Lady of Mt. Carmel, 238 AD2d 101,
lv. denied, 90 NY2d 804. CHECK
SITES
Clearly, each case is fact specific and will require
a careful analysis of the
facts
and circumstances including analysis of the prevailing case law.
If you, or anyone you know, has been injured on the job, you should seek
legal counsel immediately, since not doing so could cost you significant amounts of money, and/or result in you
not being able to pursue a claim since the law limits the time in which you can
bring a lawsuit. Call one of our award-winning attorneys at (800) 893-9645.
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