The exclusive remedy provision of workers’ compensation law in most states provides that employers – and those standing in the place of employers (i.e., employees, certain contractors etc.) – are shielded from civil liability for work-related injuries. Instead, workers are extended no-fault insurance through their employer’s workers’ compensation program.
However, there are still cases in which injured workers – or family members of those killed – may pursue third-party liability of others besides the employer who may have been negligent in causing the accident.
This was the type of case in Hanco Corporation v. Goldman, after a horrific work site accident killed three, including plaintiff’s husband. The three workers were buried alive underneath dirt and clay at an industrial park while installing a sewer line. Decedent was 55 years-old. The other two men killed were ages 30 and 19. Co-workers tried desperately to dig the victims out with their own hands, but they couldn’t get them out in time.
When decedent’s widow filed a lawsuit, it was revealed he worked for a professional employer service, who leased services to the construction site’s subcontractors, a heating and cooling service. It was that subcontractor and the general contractor that were named as defendants in plaintiff’s construction accident lawsuit.
The Mississippi Supreme Court, which was recently asked to review the case, ruled the lower court was right to deny summary judgment to the general contractor because, although the state workers’ compensation law does provide exclusive remedy to employers, defendant in this case waived its exclusive remedy affirmative defense.
According to court records, the professional services company made the workers available to the subcontractor for lease and gave right of direction and control over the workers, including the right to hire, terminate, discipline, assign and reassign the workers. The subcontractor was also responsible for setting salary and benefits and interviewing, hiring and assigning workers. Professional services firm was required to supply workers’ compensation insurance, but the subcontractor was to provide a minimum $1 million in general liability insurance.
Plaintiff collected workers’ compensation from the professional services firm, but then sued the subcontractor and general contractor.
After 28 months of litigation, the defendants, who had been found to have violated federal worker safety requirements as set forth by the Occupational Safety & Health Administration, submitted an affirmative defense. While negligence was conceded, the defense asserted protection under workers’ compensation exclusivity.
The trial court denied this motion, citing the fact that defense participated in litigation for more than two years before raising this defense.
Defense appealed, and the state high court affirmed. The court noted there were no extreme or unusual circumstances that would explain this delay. Had it been timely filed, it would have served to terminate or stay the litigation that was ongoing for so long. However, this defendant joined motions, designated expert witnesses, participated in depositions – and at no point raised this very simple defense. Thus, it waived its right to it.
Call Allred & Allred P.C. at 1-866-942-9315 to speak with a Montgomery personal injury lawyer.
Hanco Corporation v. Goldman, Sept. 17, 2015, Mississippi Supreme Court
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