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Does Indep. Contrtr. get Worker Comp?

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M

Maureen

Guest
Being sued by a man who came to work with another independent 1099 contractor. (both received 1099's) The man cut his finger off on a saw and is suing us. We do not have Work. Comp to cover him and are being sued personally. How difficult will it be to prove him to be 1099 if he received checks weekly from us which he requested because he is foreign and said this is how he preferred to get paid.
 


I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by Maureen:
Being sued by a man who came to work with another independent 1099 contractor. (both received 1099's) The man cut his finger off on a saw and is suing us. We do not have Work. Comp to cover him and are being sued personally. How difficult will it be to prove him to be 1099 if he received checks weekly from us which he requested because he is foreign and said this is how he preferred to get paid.<HR></BLOCKQUOTE>


My response:

For purposes of workers' compensation the characterization of the relationship shall be governed by [Ca Labor § 3200 et seq.]." [Ca Bus & Prof § 10032(b) (emphasis added); see generally, S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 353-359, 256 Cal.Rptr. 543, 550-554 (detailed discussion of "independent contractor" vs. "employee" status for workers' comp purposes)]

Homeowners insurance policies also usually provide both workers' compensation and employers' liability coverages for "residential employees":

Workers' Compensation Insurance: By statute, any policy providing "comprehensive personal liability insurance" must also provide workers' compensation coverage for injuries suffered by "residence employees" in the course of employment. [See Ca Ins § 11590; Ca Labor § 3600]

Workers' compensation coverage "is required in the sense that such policy must be construed as including such coverage, whether or not it actually contains express provisions to that effect." [State Farm Fire & Cas. Co. v. Workers' Comp. App. Bd. (1997) 16 Cal.4th 1187, 1193, 69 Cal.Rptr.2d 602, 604 (emphasis in original)]

Sample provision: "With respect to residence employees of the insured . . . the Company agrees . . . to pay promptly when due all compensation and other benefits required of the insured by the workers' compensation law." [See State Farm Fire & Cas. Co. v. Workers' Comp. App. Bd., supra, 16 Cal.4th at 1191, 69 Cal.Rptr.2d at 603]

Negligence immaterial: Workers' compensation insurance covers injuries suffered in the course of employment "without regard to negligence" by the employer or the employee." [Ca Labor § 3600(a)]

· Injuries caused by intoxication of the injured employee or intentionally self-inflicted are excluded. [Ca Labor § 3600(a)]

Includes repair persons: Ca Labor § 3351(d) encompasses situations where a homeowner hires someone to make repairs on the premises, such as a plumber or carpenter. [Furtado v. Schriefer (1991) 228 Cal.App.3d 1608, 1615, 280 Cal.Rptr. 16, 19]

No coverage before residence built: The above definition of "residence employees" contemplates an existing residence. Persons employed in construction of a dwelling are not entitled to compensation benefits for injuries suffered before the residence is complete. i.e., their services are not performed "incidental to ownership, maintenance or use of" a dwelling. [Scott v. WCAB (1981) 122 Cal.App.3d 979, 985, 176 Cal.Rptr. 267, 270]

IAAL


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M

Maureen

Guest
I am a NJ employer. Homeowner insurance would not apply and we did not pick up the Worker Comp policy until after the accident of this 1099 worker. Does it make any difference that he was a 1099 person?
 

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