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Up-the-ladder immunity shields construction company from liability


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sean

By Sean McLean

Worker’s Compensation Act

Under the particular jurisdiction’s Worker’s Compensation Act (“Act”), an employer who has secured worker’s compensation is immune from an employee’s civil suit.  For this purpose, an “employer” includes a contractor who subcontracts portions of its projects.  Such a contractor is not liable to an injured employee for any payments where its subcontractor has secured the payment of workers compensation insurance.  In this case, the subcontractor had in fact secured payment of workers compensation insurance.  Accordingly, the construction company’s potential liability to the employee ultimately depended upon its status as a “contractor” under the Act.

Up-the-ladder immunity
Whether the construction company was a “contractor” under the Act turned on whether it assigned to the Subcontractor the kind of work which was a regular or recurrent part of the work of the construction company’s trade, business, occupation, or profession.  The employee claimed that the installation of heating, ventilation, air conditioning, plumbing and electrical systems could not be considered a regular or recurrent part of the construction company’s business since it habitually contracted those jobs away.  The court disagreed with the employee’s contention, however, finding that as long as the construction company contracted away a job it is expected to perform, even if it never actually performs that type of job, the construction company can be considered a “contractor” that reassigned regular or recurrent work.  Accordingly, as a matter of law, the court determined that the installation of heating, ventilation, air conditioning, plumbing and electrical systems was considered a regular or recurrent job of the construction company.  Therefore, by reassigning these jobs to the subcontractor, the construction company was under the Act’s definition of “contractor” and was immune from civil liability for the employee’s injuries.

 

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