post comes to us courtesy of Mike Sensor. Mike contacted me last week
with some background information in a case of first impression for which he was
awaiting a bench ruling transcript from Sussex County Superior Court. I
am always excited to hear from Mike, as he is someone I consider to have
mastered the intricate and the esoteric when it comes to Delaware law.
Mike about our case under scrutiny:
the facts are this-- Claimant is working for a sub-sub contractor on a house
site. Sub-sub shows its sub (which is actually a sub for the general) a
certificate of WC insurance, which shows that the employer is only insured in
Pennsylvania under SWIF (assigned risk pool). Nevertheless, sub accepts this as
sufficient proof of W/C coverage for claimant's employer.
injured on the job. Not surprisingly, SWIF denies the claim.
So, I then
go to the Board twice on two motion days. Orders attached. First
the Board rules the employer is uninsured and orders it to post a bond (not
surprisingly, it never happened). Then I go for an order forcing the sub to
cover my client's comp claim under 2311(a)(5) as the insurer. Board
grants the order and the sub has to pick up the claim.
file a tort action against the employer (because it was uninsured, but it's now
defunct), sub, and general.
a defense of the exclusivity provision. I file a motion for summary judgment on
the basis that 2311(a)(5) and the Board's order only deem the sub the insurer,
not the employer and nothing in 2311 or elsewhere in the Workers' Compensation
Act forces a choice of remedies, which is what sub was essentially saying. Sub
argued that this was tantamount to double-dipping and that the Act must be read
as a whole."
So that was
last week. Mike was kind enough to get back to me this week with the sequel:
previously emailed you the basic facts of the case. The general raised an
affirmative defense of the exclusivity provision of the Workers' Compensation
Act. I filed a motion for partial summary judgment on that affirmative defense,
Court agreed with my analysis. Judge Bradley made it clear that under the
plain language of 2311(a)(5), the general is only deemed the insurer of the sub
and its employees for the purposes of the Worker's Compensation Act, and it is not
deemed the employer. This distinction was discussed in a case decided by Judge
Stokes called McKirby v. A&J Builders (Del. Super. 2009) (attached).
In sum, the
Court rejected the general's argument that the claimant was double-dipping by
collecting WC benefits from the general's insurer and then proceeding with a
tort action, and agreed with my argument that 2311(a)(5) preserves the
claimant's right to pursue a tort action against the general notwithstanding
the general's payment of WC benefits under 2311(a)(5)."
the takeaway is this:
general (or in this case, the sub) can be sued in tort even though they have
provided workers' comp benefits as the insurer under 2311(a)(5) for
failure to ensure that the sub had Delaware comp coverage.
A big shout
out to Mike for keeping us in the loop. Section 2311 is new enough,
relatively speaking, that whatever emanates from the Court as a point of
clarification or interpretation is to be cherished. In terms of
serendipity, this rivals my earlier post where our Delaware Supreme Court held
that the carrier's Section 2363 lien does not apply to UIM proceeds. Its'
a great week to be a plaintiffs' lawyer in The First State.
speaking of things to be cherished, above is a picture of Mike's daughter,
Ketevan Sophia.....which I stole from his wife Patricia on Facebook. Not
only is this child beautiful, she is sharp as a whip like her Daddy.... And
thankfully gets her sparling good looks from Mama Trish.
Cassandra Roberts Visit
Detour & Frolic, a law blog by Cassandra Roberts
For more information about LexisNexis products and
solutions connect with us through our corporate