This is a simple question, but one that popped up the other day from one of my clients:

If a contractor is deemed to be the statutory employer of an injured worker, does that contractor receive all of the immunities and protections of an actual employer?

Section 440.10 mandates a contractor liable for all employees of a subcontractor engaged in such contract work unless the subcontract has workers’ compensation coverage.  This means, if the subcontractor has no insurance, the contractor steps in his shoes and becomes the “statutory employer” of the injured worker.  This happens all the time and this is the reason why many contractors carry extensive insurance and require their subs to have a certificate of insurance before contracting with them.

The question is does the contractor get the same immunity as a statutory employer as the real employer–the subcontractor–gets under the law.  The answer is of course.  C.W Roberts Contracting v. Cuchens, describes this scenario and affords the contractor all of the immunities guaranteed to a real employer. 

But, the immunity is not absolute.  A Claimant can purse an action for intentional tort, even if she receives workers’ compensation benefits, but does not pursue her claim to a conclusion on its merits.  So, if a Claimant settles her workers’ compensation claim or gets a favorable judgement from a JCC, then she is barred from filing an intentional suit.

Employers, do not forget!  If you fail to secure workers’ compensation insurance you open yourself up to more than just intentional torts.  Without coverage, an employer cannot claim exclusiveness of liability and a Claimant now has an election of remedies.  She can pursue workers’ comp benefits, or seek damages for regular negligence.  And, regular negligence is much easier to prove than an intentional tort.  So, if you as an employer are skirting insurance, consider otherwise. 

 

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