By Quenda Behler
Let's say that your framing subcontractor is cutting sheathing
with the guard pinned back on his saw. The building inspector
comes along (or the homeowner or another sub or even a passing
stranger) just as the framer is putting the saw down with the
blade still spinning. The spinning blade catches on the
subfloor, and the saw runs over the inspector's foot. That's
negligence, and the inspector can sue that subcontractor.
In addition to being able to sue the framing subcontractor,
the inspector can sue you, the contractor. In fact, he can sue
you without even bothering to sue your subcontractor. Maybe the
sub doesn't have insurance, or maybe the building inspector
never liked you anyway and blames you for the stitches he had
to get in his foot, or the lost toe.
(Note that I specifically did not include one of your
employees as a possible victim in this example. That's because
employment law makes it easy for your employee to sue the
framing subcontractor for negligence but hard for him to sue
you for negligence. In the vast majority of cases, workers'
compensation is the only thing an employee can get from
Joint and Several Liability
The legal expression for the liability in the framing case is
joint and several liability. What "joint and several" means is
that the plaintiff can pick and chose among his potential
defendants, because they are all liable. The plaintiff will
probably pick you because you're the one with the deepest
pockets. You probably do have insurance. Even if you don't, or
if your insurance is inadequate, you may own some expensive
equipment, have some accounts receivable and maybe some cash in
your company bank account — all of which could be
attached by the inspector's lawyer.
But you're not the guy who disabled the guard on your saw, so
how did you get to be a potential defendant? Here's how: As the
general contractor, you have a legal duty to maintain a safe
job site and to supervise your trade contractors. If you fail
to fulfill that duty, you're considered negligent. All the
inspector's attorney has to do is put together enough facts to
demonstrate that you knew, or somehow should have known, that
your sub was pinning back the guard on his saw.
Here's another way you could become a potential defendant:
Lots of cases on the books say a general contractor has a duty
to see to it that his or her subcontractors carry liability
insurance. If the general contractor has subs on the job site
who don't have insurance but do injure someone, the general
contractor is also negligent, because he didn't see to it that
his subs had liability insurance.
Negligence claims are liability claims. Unlike workers'
compensation claims, they aren't limited to lost wages and
medical bills. In liability suits, the plaintiff can collect
for any damages actually suffered. "Actually" is a very elastic
term. You may not think emotional suffering is actual damage,
but the courts do. Suppose the injured inspector says he can't
do his job anymore, because the pain and suffering he
experienced has made him afraid to approach people who are
using circular saws. What do you think the remaining 20 years
of his livelihood are worth? You'll find out if the jury rules
Does this mean that you will always be liable when your sub is
careless and reckless? No, not always. One way to avoid
liability would be to prove that you had no way of knowing your
sub was pinning back the guard and that you had made every
effort to find out, including regular safety inspections and
vigorous and ongoing efforts to eliminate unsafe practices on
the job site (as well as other kinds of careless or reckless
behavior such as drinking and horseplay). But unless you did
all those things, and have a good paper trail to prove it,
there's a good chance you'll get burned.
Okay, so you're liable, but what about the sub? Maybe his
truck is worth something, and he might even have some other
assets. Although the nature of joint and several liability is
that the plaintiff doesn't have to bother suing your sub for
his part in this fiasco, you can. The legal theory is
called contribution. Even if the plaintiff won't spend his
valuable dollars suing the sub who actually caused the damage,
you may choose to drag that sub into the lawsuit on a
What can you do to stay out of a mess like this in the first
place, or better protect yourself if you should get dragged
into something similar? First, put together a safety plan and
make it part of your contract. Require your subcontractors to
agree to meet your safety rules. Then regularly inspect to make
sure they are actually following your safety plan. Second, make
sure you carry enough liability insurance. Third, make sure
your subs have current liability insurance. Ask to be named as
beneficiary on the sub's liability policy. That way you will be
informed if the policy is cancelled for some reason, such as
An important question here is what your insurance company's
response will be. The insurance company has to defend you if
your liability policy was in force at the time of the incident.
In fact, you will find that the insurance company's lawyers
have the right to defend you, even if you don't want them to.
If you read the fine print in your insurance contract, you will
find that they also have the right to settle that claim, even
if you don't want them to.
Even if your insurance company doesn't cancel you outright or
raise your premiums so high you have no hope of paying them, it
will institute regular audits of your books to make sure that
you're using only subcontractors who carry liability insurance.
If you are not following that rule, you will probably end up
paying additional retroactive premiums.has practiced and taught law for over 25
years and is the author ofThe
Contractor's Plain-English Legal Guide(www.craftsman-books.com).