Construction Site Third Party Claims
Washington State’s Industrial Insurance Act of 1911 was passed by the Legislature to give employers immunity from lawsuits filed by their own injured workers. In other words, the 1911 law promised that workers injured while on-the-job would receive workers’ compensation benefits regardless of who caused the injury, but took away the workers’ right to sue their own employers or their own co-workers, even if those employers and/or co-workers negligently caused the injury. RCW 51.04.010. However, injured workers retained the right to sue third persons – not their own employers or their own co-workers – if a third person’s negligence caused the worker’s injury. RCW 51.32.030.
Exercising this right to bring a third party claim does not affect the injured’s entitlement to workers’ compensation benefits. RCW 51.24.040. In fact, if the worker was injured by a third party, the Department of Labor and Industries [DLI] will force the injured worker to make an election: either the injured worker must “elect” to bring the third party claim or “assign” the third party claim to DLI. RCW 51.24.030-.050. If the injured worker assigns the third party claim to DLI, DLI will hire its own lawyer to bring the third party claim, and the injured worker will be asked to cooperate and participate in the prosecution of the third party claim just as if the injured worker had brought the third party claim himself/herself. For this reason, if a third party claim has merit, the injured worker should choose his/her own lawyer and keep control of the third party claim.
The law gives DLI the right to make sure that – one way or the other – third party claims are brought. If the third party claim is successful and a third party settlement or judgment is paid, DLI is entitled to receive a portion of the third party settlement/judgment to pay it back part of workers’ compensation benefits it paid to the injured worker. RCW 51.24.050-.060. If a third party recovery is made, the law guarantees that the injured worker gets at least 25% of the third party recovery – the injured worker always receives more than the worker would have received had no third party claim been brought in the first place. It is in the workers’ best interest to have his or her own lawyer handle the third party claim, rather than leave matters to DLI, so that the worker’s portion of the third party recovery is maximized.
On construction sites, the general contractor or a subcontractor other than the construction worker’s own employer (or co-worker) may have violated a minimum safety regulation and caused the worker’s injury. This gives the worker the right to file a third party claim against the general contractor or other subcontractor. The law places upon every general contractor the non-delegable specific duty to ensure that all subcontractors and workers on a construction site comply with all WISHA construction safety regulations. Stute v. P.B.M.C. Inc., 114 Wn.2d 454, 464, 788 P.2d 545 (1990). Even if a construction worker is injured due to the negligence of his own employer or co-worker, the general contractor may also be liable for its own failure to enforce the safety rules violated by the employer or co-worker. WAC 296-155-110 requires general contractors to hold weekly walk around safety inspections, to look for potential hazards, to remedy those hazards, to document and post the findings, and to share those findings with workers. When a general contractor allows a subcontractor to ignore safety regulations and put a construction worker in harm’s way, the general contractor is negligent and can be held liable for the worker’s injuries.
Third party claims can arise anywhere in Washington State -- in Seattle, Tacoma, Olympia, Bellingham, Marysville, Everett, Centralia, Longview, Vancouver, Ellensburg, Wenatchee, Yakima, Richland, Walla Walla, Spokane, and all points in between. The lawyers at Kraft Davies, PLLC have successfully resolved thousands of third party claims. If you or a loved one has suffered an injury while working at a construction site, call us at 206.624.8844 for a free consultation.