There is actually a type of claim known as a “Third Party Over Action” in which an injured employee, who after collecting under his/her employer’s Workers’ Compensation policy, can sue a third party for contributing to the employee’s injury. And then, provided that there is some type of written agreement between the third party and the injured party’s employer, the liability for the accident is passed back to the employer.
The catch is that the written agreement between the two parties must be in place prior to the accident.
Workers’ Compensation coverage was initially designed to be the sole remedy in case of on the job injuries. However, that was before Labor Laws 240 & 241 were reenacted. Labor Law 240 is the New York Scaffold Law and Labor Law 241 is New York Construction Labor Laws. The statutes impose “Strict Liability” on General Contractors and on Building Owners when workers are injured as the result of a fall from a height. Therefore, even if the contractor is only 1% at fault for the employee’s injury and the worker is 99% at fault, the general contractor or building owner becomes entirely liability for the damages incurred by the workers.
There are only two defenses to Labor Law 240 actions and they imply that if the injured worker’s injuries are (1) solely the result of his/her failure to follow basic construction site safety rules and/or (2) failure to use safety equipment. If it could be proven that the injured worker was culpable in either of these areas, he/she would undoubtedly find it very difficult to prevail in a lawsuit.
By Karen Skoler, CPCU