by Claudine A. Cloutier
When someone is injured within the context of a residential construction project, there are many potential targets of recovery. Depending on the facts surrounding the injury, such potential targets include owners, developers, general contractors, construction supervisors, design professionals, and subcontractors.
In a perfect world, the party with the most negligence would also be the party with the most assets or insurance coverage. Unfortunately, in residential construction, the converse is more often the case. A big judgment may make headlines, but if it is unenforceable, it is merely a piece of paper. The goal is to identify both who the primary culprits are and who has the ability to pay a settlement or verdict.
There is no substitute for a careful, thorough, and detailed discussion between the client and the attorney. Because the rights and remedies available through tort recovery and through workers compensation will turn on so many basic facts regarding employment and contractual relationships, an owner’s retained control, or the business of the owner of the project, any information regarding those issues may determine the best prospects for recovery. Sometimes a workers’ compensation claim may be the only or the best option available. The remedies available through the workers compensation statute are limited, however, and statutorily defined. Therefore, even if a workers compensation claim may be successfully pursued, the potential for a third party claim against a negligent non-employer should always be investigated.
Frequently, the contractual and employment relationships among parties involved in residential construction are murky enough to provide the basis for several or alternative liability arguments. An employer must provide workers’ compensation insurance to its employees, but an independent contractor does not have to be covered by the hiring entity. Although the concept is straightforward, whether one is an employee or an independent contractor is not necessarily determined by the parties’ own understanding, but is fact-driven and often unclear.
Because Keches Law Group handles both third-party negligence claims and workers’ compensation claims, we are able to coordinate strategies in order to bring our clients the best possible results.