In today’s busy world, there are a number of ways that a small business owner, a general contractor, an independent subcontractor, or an owner of land find the need to have some construction performed. Perhaps they need some equipment repaired or installed. Unfortunately, in the process of these functions, a client or worker can sustain a severe or fatal injury leaving the employer liability dangerously high. Litigation invariably ensues, at a great cost to those involved, sometimes even financially ruinous.
Certainly, worker’s compensation limits an injured employee’s ability to recover from his or her employer, often the independent contractor. Sometimes the company does not carry worker’s compensation or the injured person is a third party and not an employee.
When an injured party is an employee, that person hopes that the lawsuit will find deeper pockets with applicable insurance policies. The threshold query in the majority of these questions starts with an inquiry as to whether the general contractor or owner of the independent contractor owes the employee a duty. Considerations of this question starts with an analysis of the Texas common law, Chapter 95 of the Civil Practice & Remedies Code, and/or whether the owner or general contractor exercised sufficient control over the independent contractor.
Central to an analysis of these type of litigation cases is a determination of whether or not that degree of actual control by the employer is sufficient to create a duty of care for the injured employee. There have been a variety of cases in Texas which is evaluated different scenarios. The short answer is that there is no consensus or bright line measure which can be used to evaluate these cases. In addition, there is ambiguity as to what qualifies one to the defenses available to an owner/general contractor under Chapter 95 of the Texas Civil Practice & Remedies Code.
At Thomas M. Fountain & Associates, PC, we recommend a proactive evaluation of the risks to those concerned by a review of the contract documents and insurance policies available to those involved. For over 25 years, our firm has been actively involved in the defense of lawsuits involving construction defects, personal injury, employer/general contractor liability, and related litigation. Our office also has extensive experience in the analysis of insurance policies and the determination of whether coverage may apply in various claims arising out of personal injury in the construction industry.
If you desire a review of your contract documents and insurance policy, please do not hesitate to contact us at your convenience to set up an appointment whereby an evaluation of your business and the exposure it may have to risks arising out of the scenarios envisioned herein.
The law firm of Thomas M Fountain & Associates, P. C. is an AV Preeminent rated law firm located in The Woodlands, Texas which is in the greater Houston metropolitan area. Thomas M Fountain has 35 years of experience upon which the firm’s clients draw when necessary. The firm prides itself on being proactive rather than reactive.
For more information see our Website at www.HoustonTrialLaw.com or call (281) 296-6500.
*Certifications not Implied.