November 1, 2011
Under Massachusetts law, a general contractor that hires a subcontractor that does not have the required workers’ compensation insurance must pay workers’ compensation benefits to that subcontractor’s injured worker. The Massachusetts Supreme Judicial Court (SJC) has now held that, in addition to the workers’ compensation benefits which the general contractor must pay, an uninsured subcontractor’s employees also may sue the general contractor for injuries or wrongful death and the general contractor is not entitled to immunity from suit under the workers’ compensation statute for such common law claims.
In Wentworth v. Henry C. Becker Custom Building Ltd., Becker, the general contractor, hired a subcontractor, Great Green Barrier Co. (Great Green), to perform waterproofing work on a residential construction project. An explosion occurred on the project site killing the owner of Great Green, Timothy Wentworth, and seriously injuring his son, Ezekiel, both Great Green employees. Great Green did not carry workers’ compensation insurance and, because Becker hired an uninsured subcontractor, Becker’s workers’ compensation carrier was required by Massachusetts law to provide workers’ compensation benefits to the Great Green employees. (See M.G.L. c. 152 § 18.) Eventually, Becker’s workers’ compensation insurer made lump sum payments to the representative of Timothy and Ezekiel Wentworth. The Wentworths then filed suit alleging that Becker’s negligence, gross negligence and/or willful, wanton, or reckless conduct caused the death of Timothy and the injuries to Ezekiel. Becker defended asserting that it was immune to such suit under the workers’ compensation statute because it paid workers’ compensation benefits to both Great Green employees.
Initially, the trial court awarded summary judgment to the general contractor, Becker. After the Appeals Court reversed the trial court’s decision, the SJC granted Becker’s application for further appellate review. The SJC agreed with the Appeals Court and again reversed the trial court’s allowance of Becker’s motion for summary judgment.
This alert is one of a series of publications by Murtha Cullina LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer concerning your own situation and any specific legal questions you may have. Summarily, the SJC held that under the workers’ compensation statute immunity applies to the insured employer who provides workers’ compensation insurance to “his employees” (G.L. c. 152, Sec. 1(6)). It was undisputed that Timothy and Ezekiel Wentworth were employees of Great Green and not Becker.
As a result, Becker’s insurer paid the lump sum workers’ compensation benefits, and Becker is subject to suit for the common law claims asserted by the representative of Timothy and Ezekiel Wentworth. If the lawsuit by the Wentworths’ representative is successful, Becker will pay twice for the same injuries: once through its workers’ compensation insurance carrier and a second time through a judgment in the lawsuit. The takeaway from this case is that a general contractor must be extremely careful to confirm that its subcontractors have obtained the required workers’ compensation insurance.
Should you have any questions with regard to the above, please contact your attorney or an attorney in our Construction practice group.
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