Can a Sub-Contractor Sue a General Contractor for a Work-Related Injury?

When a construction project is underway, even a small one, the workers on the site are often a mix of specialized laborers and contractors. A general contractor might have oversight on the project, but there will be a steady stream of subcontractors on and off the job site that handle specialized work such as framing, plumbing, tiling, and electrical work.

When a project owner hires a contractor, they often have a list of criteria that includes a valid contractor’s business license, bonding, and workers’ compensation insurance. But what happens when one of those subcontractors gets hurt on the job? Who is liable for a work-related injury?

Construction Site Injuries Can Be Severe

Working in the construction industry can be particularly dangerous, thanks to many hazards that exist on a construction job site. The Occupational Safety and Health Administration (OSHA) reports that there are more than 5,000 deaths in this industry annually. The U.S. Bureau of Labor Statistics reports that more than 6% of all construction workers will be injured at work severely enough to lose time from work.

Most of the construction accident injuries fall into one of several main categories:

• Falling objects
• Electrocution
• Slip, trips & falls
• Machinery malfunctions
• Ladder and scaffolding collapses
• Chemical accidents and exposure

Who Is Liable When a Sub-Contractor is Injured?

Let us assume you have a framer working on a scaffolding who is seriously injured when the structure collapses. The worker is a subcontractor, and their employer erected the scaffolding but did so incorrectly.

The general contractor for the job had no tradesmen on staff but did supervise the job with a superintendent that visited the job site at least once per day. The superintendent did not tell the framers how to put up the scaffolding, how to do their work, and did not furnish any tools for the job.

Can the general contractor be held liable for the injury of the subcontractor in this case? Probably not, but there are some “tests” according to the law that help determine who is responsible.

What is Statutory Employment in Georgia?

Each state’s workers’ compensation system is governed by state as opposed to federal law (there are a few exceptions). In Georgia, a “statutory employer” is a party that can be held liable for workers’ compensation benefits when a subcontractor is injured.

Specifically, O.C.G.A. § 34-9-8(a) states that some of the entities that may be considered statutory employers are primary contractors, secondary contractors, and subcontractors.

Under the state’s workers’ compensation statute, the actual employer, which would be the framer in our example, is primarily responsible for compensation, and the statutory employer is secondarily liable. If the immediate employer does not carry insurance or is insolvent, the injured worker could pursue benefits from the statutory employer.

While there are often safeguards in place to ensure that general contractors have full insurance coverage, this is not always the case with subcontractors. But Georgia’s Workers’ Compensation Act requires that most employers with three or more employees have workers’ compensation insurance to protect their staff.

If a subcontractor does not have three or more employees or does and fails to secure workers’ compensation coverage, the general contractor can be treated as a statutory employer and be held liable for an injured worker’s injuries.

Is There an Employer/Employee Relationship?

Another exception exists where a general contractor might be liable for the negligence of a subcontractor. This happens when the general contractor “retains control” over the work efforts of the subcontractor.

Assume the same framer and scaffolding scenario above, but with a few changes. The general contractor tells the subcontractor how and when the job must be done, provides the materials for the scaffolding, and supervises its assembly. When an accident happens, the general contractor would be hard-pressed to argue that they were not treating the subcontractor like an employee.

There are several instances in which the appearance of an employer/employee relationship can make a general contractor liable for injuries to a subcontractor:

• When the general contractor has control over the means, method, and manner in which the subcontractor works;
• When the general contractor has agreed to control the safety of the job site; and
• When the general contractor is superintending the job, knows that the subcontractor isn’t working safely, and fails to exercise an opportunity to prevent an accident.

Workers’ Compensation vs. Third-Party Claims

In most scenarios, workers’ compensation is a “no-fault” system, meaning an employee cannot sue an employer for damages, and no one needs to prove negligence to collect benefits. But things become complicated when there are multiple employers on a job site.

If a subcontractor is injured on the job, they may have access to workers’ compensation benefits, either through their employer or the general contractor. Workers’ compensation provides a variety of benefits, such as reimbursement for a portion of lost wages, payment for medical care, retraining when necessary, and permanent disability.

A construction worker in Georgia might have other means of recovery after a serious accident. In some cases, a third party might be responsible for the accident and resulting injuries. Some examples include when a faulty piece of machinery or a toxic substance caused injury. These are complex cases that require thorough investigation, but you may be entitled to additional damages that are not covered by workers’ compensation.

It is a common misconception that insurance companies will step up and pay legitimate claims and treat injured workers with fairness and respect. In many cases, injured workers must fight for the compensation they rightfully deserve, which is why we recommend that you work with a lawyer that can investigate and prove your case.

Speak With a Qualified Atlanta Construction Injury Firm

The experienced injury attorneys at Bailey, Javins & Carter, L.C. in Atlanta are available for consultation at no cost to you. If you have suffered an injury in your workplace and believe you may have a third-party claim, our legal team will review your situation and outline your options.

Contact us now at 678-981-5370 or reach us online to schedule your appointment.