Sweet Caroline’s Excellent Adventure…..and a Lack of Due Diligence in Delaware as It Relates to Section 2311 Liability

Sweet Caroline’s Excellent Adventure…..and a Lack of Due Diligence in Delaware as It Relates to Section 2311 Liability

I heard from Fred Freibott last evening with a recent case involving Section 2311 contractor liability.  Since friends don't let friends remain ignorant of the law as to Section 2311, I thought I owed y'all a post.  The case is Gregory Otter v. Green-Light Solutions, LLC, East Wind Enterprises, LLC, and Neighborhood House, Inc., IAB #s 1385184, 1390163, and 1392097 (6/3/12).

The case has a kind of circuitous fact pattern and there was a collateral issue of concurrent employment that for my purposes is of little consequence.    The claimant, a roofer by trade, initially filed against Green-Light and East Wind., both New Jersey companies, and both companies whose workers compensation insurance coverage did not extend to activity performed in Delaware.  Neighborhood House was then added to the case as a general contractor potentially liable for benefits under Section 2311 [enhanced version available to lexis.com subscribers].

The Board found that the claimant was an employee of both Green-Light and East Wind when the accident occurred and that there was a dual or concurrent employment relationship.  The Board further assessed liability against Neighborhood House as the general contractor who failed to perform its Section 2311 due diligence which would require that it confirm available insurance coverage on the part of its subs (emphasis on the word "available").

This case is noteworthy in that it distinguishes the recent DE Supreme Court case of Cordero v. Gulfstream Development Corp. and Delaware Siding Co., 56 A3d 1030 (Del. 2012) [enhanced version available to lexis.com subscribers]Simply stated, Cordero stands for the proposition that a general contractor does not have a duty beyond verifying that a certificate of insurance is valid on its face (and a duty that is not continuous in nature).  What makes Fred's case special is that Neighborhood House argued that it fulfilled its due diligence by obtaining a valid certificate of insurance-and it did, in a manner of speaking.

The certificate of insurance in question here provided coverage for New Jersey work activity and did not extend to jobs engaged in Delaware.  In ruling against Neighborhood House, the Board distinguishes Cordero and relied upon the Estevam and McKirby cases.  So we thank Fred for sharing a nugget of law involving a statute that is still relatively new and one that does not crop up in litigation all that often.  In addition to Fred, a whole host of cool people were involved in that hearing including Keri Morris, Andy Carmine and Christian Heesters (actually I do not know Christian, so I am a tad out on the limb stating that he is "cool").

As for the photo above, that is Sweet Caroline abroad.  Studying for the summer in Spain, and based out of Pamplona.  She is having the time of her life......

And all Mama can say about that is "Run with the bulls, Carrie....run with the bulls!"

Irreverently yours,
Cassandra Roberts

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