When you file a claim for a work injury in construction, you cannot sue your employer. Damages from your employer are limited to Workers’ Compensation claims, which typically cover only certain areas of damages. However, you can potentially still file a lawsuit against a third party and recover additional damages from them.
These third-party claims are lawsuits filed against outside parties for their negligence, such as suppliers, property owners, other contractors, and drivers. When you file a third-party claim, you can get pain and suffering – an important area of damages that is not covered under Workers’ Comp. We can also file a Workers’ Comp claim, potentially getting those covered damages faster.
For a free review of your case, call the Pennsylvania construction accident lawyers at Cardamone Law today at (267) 651-7945.
What Counts as a Third Party for a Construction Accident Case?
When we talk about parties in terms of numbers, we usually mean that you and your employers are the two parties involved. You cannot file a lawsuit against your employer if your injury was work-related, which limits you to a Workers’ Compensation claim against them. However, any other party – a “third party” – might be responsible for your injuries, and there is no restriction against suing them for their negligence.
The following are some of the most common third parties to sue in a construction accident case, though there are other potential targets of a lawsuit outside of these examples:
Drivers
Roadside construction workers are often hit by negligent drivers. Negligence may be split between your employer for failing to erect proper barriers and the driver for speeding, drunk driving, etc. Whether the driver was wholly at fault or not, you could potentially get their share of damages from them.
Manufacturers
Construction injuries are often caused by dangerous and defective products used at work, such as…
- Safety gear
- Power tools
- Machinery/vehicles
- Scaffolding
- Building materials.
If any of these dangerous products caused your injury, then the negligent manufacturer could be liable.
Other Contractors
Outside contractors brought into a job site by your employer could be individually liable for the injuries they cause. For example, if an electrician comes in and causes you to get electrocuted, that would be their direct fault, not necessarily your employer’s.
Suppliers and Delivery Drivers
Deliveries of building supplies and other materials to the job site could end catastrophically if the driver hits you or otherwise causes an accident. These suppliers and drivers might work for an outside company or third party, allowing you to sue them or their employer.
What Does Workers’ Compensation Cover vs. a Third-Party Claim?
Workers’ Compensation is paid by your employer (through their insurance carrier) to cover three main areas of benefits:
- Medical expenses
- Lost earnings, usually at a rate of 2/3 of your average wage (though there are certain caps and floors that might change the specific amount)
- Additional damages for listed injuries (amputation, loss, lost function, facial scarring, lost hearing, and lost vision) equal to 2/3 of your average wage (subject, again, to caps and floors).
These benefits are paid regardless of fault, and your employer is required to cover them under the law as long as your injury was work-related.
However, third parties might be the ones actually at fault for the injury. Since you cannot sue your employer, but you can sue a third party, you can get any damages they caused you paid directly.
Lawsuits typically cover…
- Medical expenses
- Full lost earnings
- Pain and suffering.
That means your third-party lawsuit will primarily focus on the remaining 1/3 of your lost wages, plus pain and suffering damages. Pain and suffering can be significant in many cases, potentially equaling more than the other damages combined, so a lawsuit is quite important to a full recovery.
Shared Fault in Third Party Claims
Sometimes fault is split between your employer and a third party, but you still cannot sue your employer for their share of fault. This can complicate matters but still give you access to additional damages through a third-party claim.
The Process
When assessing damages, courts assign blame to each party involved as a percentage of fault. Then, they calculate total damages and assign each at-fault party to pay that same percentage of the damages.
Example
Imagine, for a second, you were injured in a crash while working on a roadside work crew. Your employer had not erected proper safety barriers, but the driver who hit you was drunk. The court might find that driver 75% at fault and your employer 25% at fault.
This would block you from the 25% of damages your employer could have paid but still get you 75% of the total damages from the at-fault driver. If your total damages were $100,000, the driver would pay you $75,000.
There are some complex rules where “joint tortfeasors” can be held responsible for the whole damages if they were more than 60% at fault or injured you intentionally, but our Pennsylvania construction accident lawyers can advise you of the effect of these rules if that situation comes up in your case.
Comparative Negligence
In a third-party lawsuit, courts can also assign partial fault to the victim. In Workers’ Comp, this doesn’t change anything, as fault is not taken into account. But in a third-party case, it reduces your damages by your percentage of fault.
Modifying the above example: if you were 10% at fault, the driver was 70% at fault, and your employer was 20% at fault for a $100,000 case, then the driver would pay you $70,000. You would lose out on both your employer’s $20,000 share and your $10,000 share.
If your fault is more than 50%, you cannot recover damages at all in a lawsuit, but you can still use Workers’ Comp.
When to Use Workers’ Comp
Workers’ Comp claims can be filed for any work-related injury as long as you suffered medical bills and lost earning power (from more than 5 days away from work). If that applies, then you can file a Workers’ Comp claim no matter who was at fault for the accident.
This can even cover accidents where you would not normally be able to sue because your employer was at fault or because you caused your own accident.
What About Independent Contractors?
If you control your own work and work for a 1099, usually in a different trade than the person hiring you, then you might be an independent contractor instead of an employee. Workers’ Comp only covers employees, so you might not be eligible for a Workers’ Comp claim.
Independent contractors can still file third-party lawsuits, but they can also sue the party who hired them (barring any clauses in their contract that might prevent this, such as a mandatory arbitration clause).
Can I Get Paid from Both Workers’ Comp and a Lawsuit?
As you may have noticed, many of the damages overlap between Workers’ Comp and a lawsuit, especially medical expenses and a portion of your lost wages. Workers’ Comp can often get you the money you need faster, but it cannot provide the areas of compensation exclusive to a lawsuit. This means you should likely file your Work Comp claim first, then get the lawsuit damages paid later.
But what about the areas where they overlap? Can you get paid twice?
Typically, no. The Workers’ Comp insurance carrier will usually be permitted to file a “subrogation claim.” This allows them to take back the damages they already paid you when you get them a second time in the lawsuit.
This encourages them to pay up quickly, knowing they can get reimbursed later in a case against the at-fault party. It also prevents you from being paid twice by two parties for the same damages.
Call Our Construction Accident Lawyers in Pennsylvania Today
For help with your case, call Cardamone Law’s Pennsylvania construction accident lawyers at (267) 651-7945.
