Some businesses rely on the services of subcontractors or independent contractors to perform essential and nonessential functions of a business. For example, a business may outsource janitorial services or the administration of payroll. Oftentimes, a subcontractor or independent contractor is brought into a business to make repairs on the building or equipment necessary for the day-to-day operations of the business. If an employee of the business suffers a workplace injury due to the conduct of the subcontractor or independent contractor, can the employee sue the independent contractor or subcontractor personally for personal injury damages? This post will review what every employee should know about suing subcontractors and independent contractors in workplace accidents.
Statutory Protections for the Employer and the Employee
Workers' compensation systems were established by states to provide protection to injured workers in the event the employee was injured on the job. Simultaneously, workers' compensation laws shield employers who purchase workers' compensation insurance from personal injury lawsuits and personal liability if an employee suffers an on the job injury. The employee’s exclusive remedy when he or she is injured on the job is to seek workers' compensation benefits.
The protection from additional lawsuits to the employer is so great, that as long as the employer has an active workers' compensation policy, the employer's policy also applies to coworkers. In many instances, Nevada courts have found that subcontractors and independent contractors are coworkers, shielding them from personal liability in personal injury lawsuits involving a workplace accident between an employee and a subcontractor or independent contractor. This is true even if the injury was caused by the subcontractor or independent contractor's own negligence.
The minimal exception to this protection for coworkers is actions involving a coworker who intentionally causes the injury to the injured worker. In those circumstances, the injured worker may sue the coworker personally, under negligence theories and other related personal injury causes of action. This additional cause of action is separate and in addition to any rights the injured worker may have to workers' compensation benefits.
Recent Nevada Supreme Court Decision on Suing Contractors
Last summer, the Nevada Supreme Court determined that an employee of a mining company could bring a personal injury lawsuit against an employee of an independent contractor who was hired by the mining company to perform repairs of a specialized tire on the mining company job site. The Supreme Court found the lawsuit could go forward because the independent contractor was hired to perform a specialized repair that the injured worker's employer was unable to perform with its own workforce. In the D&D Tires, Inc. v. Ouellette lawsuit, the employee of the specialty tire company was not considered a coworker of the injured worker, so the injured worker was able to sue the employee of the independent contract personally for his negligence in causing the injured worker's injuries.
In reaching their decision, the Supreme Court applied the "normal work test" first established in Richards v. Republic Silver State Disposal Inc., and the standard used by the Court to determine whether the independent contractor was at the mining company to perform work in the same trade, business, profession, or occupation as the employer of the injured worker. The Court found that the independent contractor was not performing work in the same trade, business, profession or occupation, but instead the work of a specialty tire repair service. Thus, the personal injury lawsuit against the tire specialty repair company employee could continue.
Contact A Workers’ Compensation Lawyer Today
A Las Vegas, Nevada workers' compensation attorney helps injured workers receive compensation and medical care when the employee is injured on the job or by a third party, like a subcontractor or independent contractor. If you have questions about your workplace injury, contact the law offices of Greenman, Goldberg, Raby, and Martinez at (702) 388-4476. Proudly serving the city of Las Vegas and Southern Nevada, schedule your free consultation today.