KEY TAKEAWAYS:
South Carolina workers' compensation generally prevents injured workers from suing their covered employers, but it may not prevent a claim against a separate party whose negligence or defective equipment caused the injury. Potential defendants include other contractors, equipment manufacturers, and certain general contractors or property owners. Third-party claims may provide damages unavailable through workers' compensation, including pain and suffering, but separate deadlines and reimbursement rules apply.
Workers’ compensation generally prevents you from suing your own employer, but it does not stop you from suing another person or company whose negligence or defective equipment helped cause a construction site injury. The claims can proceed at the same time, although a third-party recovery may affect workers' compensation reimbursement rights.
Construction sites put workers from many companies in the same place, working around the same equipment. When one of those workers is hurt, the question of who is responsible is rarely limited to one employer. At Derrick Law Firm Injury Lawyers, our attorneys handle workers’ compensation claims and the third-party injury claims that can follow, and this post explains how the two fit together.
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How Third-Party Claims Work Alongside Workers’ Compensation
South Carolina’s Workers’ Compensation Law generally makes benefits the exclusive remedy against a covered employer under S.C. Code § 42-1-540. That protection does not automatically extend to every business on a construction site. The statute preserves certain claims involving subcontractors, and an injured worker may pursue a separate party whose negligence or defective equipment caused the injury. Whether a contractor or property owner shares the employer’s immunity depends on the circumstances.
The two claims also work differently. A workers’ compensation claim generally provides covered medical treatment and partial wage replacement for a compensable work injury without requiring proof of employer negligence. A third-party claim requires proof of legal responsibility but may include damages unavailable through workers’ compensation, such as pain and suffering and loss of enjoyment of life. Any third-party recovery may also affect workers’ compensation reimbursement rights.
Who May Be Liable for a Construction Site Injury?
Liability depends on who controlled the work, equipment, and site conditions, as well as who owed the injured worker a legal duty. Potential defendants generally fall into three groups.
Other Contractors and Subcontractors
A contractor working on the same project may create a hazard that injures someone employed by another company. An electrician who leaves a live wire exposed, a framing crew that leaves an unprotected floor opening, or an equipment operator who swings a load into a work area may face liability if the evidence establishes negligence and causation.
Equipment and Product Manufacturers
Scaffolds, lifts, harnesses, ladders, power tools, and heavy equipment may cause injuries because of design defects, manufacturing defects, or inadequate warnings. A defective product can support a product liability claim against a manufacturer or seller, depending on the circumstances. Separate claims may also arise against parties responsible for using or maintaining the equipment.
General Contractors and Property Owners
South Carolina's statutory employee doctrine, found in S.C. Code §§ 42-1-400 and 42-1-410, may give certain general contractors or property owners workers' compensation immunity. In Keene v. CNA Holdings (2021), the South Carolina Supreme Court emphasized whether the contracted work was part of the company's business, including whether it had legitimately chosen to outsource that work. A company's position in the contracting chain alone does not determine immunity. Its business decisions, the work performed, and the applicable contracts all matter.
Injured workers also generally cannot sue their covered employer or coworkers acting within the scope of the employer's business for an ordinary workplace injury. Whether an exception applies requires a separate legal analysis.
What Kinds of Construction Accidents Lead to Third-Party Claims?
OSHA identifies falls, struck-by incidents, caught-in or caught-between incidents, and electrocutions as the leading causes of construction worker deaths, and it calls them the Construction Focus Four hazards. Those categories also describe many of the injuries that lead to third-party claims:
- Falls from scaffolds, roofs, ladders, and open floors, which can cause spinal cord injuries and other catastrophic harm
- Struck-by injuries from falling tools, swinging loads, and moving equipment
- Trench and excavation collapses and other caught-in or caught-between accidents
- Electrocutions from overhead power lines and damaged cords and tools
OSHA regulations do not create an independent right to sue for damages. A relevant safety violation may, however, help establish the standard of care in a negligence claim against a party that owed the injured worker a legal duty. Severe cases may also involve the issues described in our article on workers’ compensation for catastrophic work injuries.
Deadlines and Reimbursement Rules for Construction Injury Claims
Third-party injury claims have deadlines separate from workers’ compensation claims. Under S.C. Code § 42-1-560, an injured worker generally has one year after the workers’ compensation carrier accepts liability or makes payment under an award to pursue a third-party action before the right to bring the claim may pass to the carrier. The statute also establishes notice and reassignment procedures that can affect who controls the lawsuit.
South Carolina generally has a three-year statute of limitations for personal injury lawsuits, so both timelines must be considered. Filing a workers’ compensation claim does not automatically extend the deadline for a third-party lawsuit. The injured worker must also notify the Workers’ Compensation Commission, employer, and insurance carrier within 30 days after filing the third-party action. Our FAQs on third-party injury claims and compensation for third-party work-related injuries explain these requirements in more detail.
The workers’ compensation carrier may also have a lien against a third-party recovery for benefits paid or payable. Statutory rules govern litigation expenses, attorney fees, and possible lien reductions, while a recovery may affect future workers’ compensation benefits. These factors can significantly change how much an injured worker ultimately receives from a settlement.
When a Construction Accident Is Fatal
When a worker dies from a job-related injury, eligible family members may receive workers' compensation death benefits. A separate wrongful death claim may also be available against a legally responsible third party. S.C. Code § 42-1-560 addresses the rights of dependents and other people entitled to pursue or share in a third-party recovery. Our wrongful death page explains how these claims work.
