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  • Writer's pictureRick Montgomery

Subcontractor statutory liability for Missouri workers' compensation benefits.

The Missouri Labor and Industrial Relations Commission unanimously affirmed the decision of Judge Kevin Elmer placing liability on a subcontractor third in line and dismissing with prejudice the general contractor. On November 21, 2015, Employee was fatally injured in a fall accident on a construction project in Missouri. Employee, Luis Estrada, was hired in Texas and employed by Mundo Hernandez Construction who was not insured for workers' compensation. Mundo had subcontracted with Thunder, who was insured by Technology in Arkansas but not in Missouri, to provide work relative to the construction project. Thunder had subcontracted with Burkhart, who was insured for workers' compensation in Missouri by Carolina, to provide work relative to the construction project. Burkhart had subcontracted with ARCO, the general contractor, who was inured by Old Republic, to provide work on the construction project.

Section 287.040.3 dictates that "[the liability of the immediate employer shall be primary, and that of the others secondary in their order ... [n]o such [secondary] employer shall be liable ... if the employer was insured by his immediate or any intermediate employer." Mundo was the immediate employer of Employee who would ordinarily be liable for benefits, but Mundo was uninsured. Pursuant to §§287.040.1 & 3, the next intermediate statutory employer steps into the shoes of Mundo and assumes liability which would be Thunder, but Thunder was uninsured in Missouri. Therefore, Burkhart and its insurer Carolina, as the next in line statutory employer, are liable for primary coverage for Employee's death. ARCO and its insurer, Old Republic are dismissed from the claim with prejudice.

The only issue decided was insurance coverage causing this Decision to be labled as a Temporary or Partial Award which is not appealable beyond the Commission; however, because this Decision disposes of the entire controversy between the parties, an appellate court has subject matter jurisdiction over the appeal and this Decision is appealable beyond the Commission pursuant to the Missouri Constitution and §487.495.1 as a final award. Luis Estrada, Dec. v. Thunder Framing & Construction, Inc., et al., Injury No. 15-102640, decided November 1, 2022.

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