Some companies specifically avoid paying above-board wages because then they’d incur other costs, like insurance for unemployment and workers’ compensation, requirements to pay overtime, administrative payroll expenses and other costs. Others will wrongly classify “employees” (entitled to these benefits) as “independent contractors.” But even independent contractors usually have clear written terms and are asked to file a tax form. Many times, companies will pay cash specifically for illegal immigrant workers, but you should know that your immigration status has no bearing on the Indiana workers’ compensation or personal injury benefits to which you are entitled. If you are paid under-the-table and are hurt at work, your claim for benefits/ damages could be more complicated than a typical work injury case. An experienced Munster work accident lawyer can best help you navigate the system and obtain appropriate compensation.

Recently, the Indiana Court of Appeals dealt with one such case, wherein a worker was seriously injured and his small business employer, someone he’d worked for under-the-table for nine years in the logging industry, was killed in that accident.

According to court records, plaintiff had worked with the same company for years, which was tasked primarily with tree-trimming. He cut trees, roped limbs and used a pull saw. The owner gave him all the tools, including boots and a company logo shirt, for the job. The hours were random, but it was usually at least 30 hours weekly. He had no set pay rate, but it was usually about $10 hourly – always paid in cash, never overtime and no 1099 forms.

One afternoon in 2016, the plaintiff accidentally knocked down a utility pole while chopping a rotted tree on his own. He called his boss, apologized for “messing up.” Plaintiff went home, his boss picked him up and they returned to the site together. Assessing downed wires wasn’t part of his typical job, but the plaintiff nonetheless was there to help. While checking the site, both men were shocked by a powerful volt of electricity. The business owner died. Plaintiff suffered serious injuries.

Plaintiff sued decedent’s estate, seeking payment from the businesses’ commercial liability policy. Insurer helped defend the claim, conceding that while it did offer general personal injury and medical damages for which the business might be liable, this particular incident was expressly foregone in the “worker exclusion,” which included employees, contractors, temporary workers and anyone else paid by the company for work. There was also an exclusion for injury stemming from “logging and lumbering” by the sole proprietor of the company and/or on his behalf.

Usually, workers’ compensation is the exclusive remedy for injured worker, meaning they can’t sue their boss – but also that they don’t have to prove their employer negligent (only establish the injury/illness occurred in the course/scope of employment). Those who fail to purchase proper work injury coverage could be held personally liable (possibly payable through umbrella coverage or estate assets, but that assumes the worker could show he was in fact an employee, not a contractor, requiring an in-depth judicial analysis). Depending on the details, other third party defendants (manufacturers of defective tools, careless property owners, etc.) might also be liable for damages.

With regard to this particular case, though, the commercial general liability policy, the appellate court ruled, was not responsible. The exclusions in the policy were clear. If the injured worker is hoping for compensation, he’ll have to seek it elsewhere.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Smith v. Progressive Southern Insurance Co. et al., Aug. 31, 2018, Indiana Court of Appeals Lawyer Blog

More Blog Entries:

Pre-Existing Condition Doesn’t Bar Indiana Employee From Receiving Workers’ Compensation, May 2, 2018, Munster Work Accident Attorney Blog

According to court records in the case, the question was whether the trial court erred, even though the evidence tended to show the plaintiff, as a business invitee, knew about the dangerous condition on the floor.

The appellate court justices ruled there remained a genuine issue of material fact as to whether the owner of the property should have anticipated the plaintiff’s harm, despite her knowledge of the danger. Therefore, the trial court’s ruling was reversed and the case remanded for further proceedings.

The incident in question occurred in January 2011. The plaintiff’s husband was a patient at the defendant hospital. She had visited him there numerous times on previous occasions. During these visits, her husband would request from her a drink of water. She would oblige, and when he was finished, he would give the glass back to her, and she would return it to the table from which she had gotten it.

On one occasion, the plaintiff was returning the glass of water back to the table when she tripped over wires that were running along the floor underneath the table. This resulted in a severe injury to the plaintiff.

Later, during a deposition, she was asked whether she had to walk over the wires to get the water. She said she did. Asked whether she stepped over them, the plaintiff replied no, she simply walked over them. She agreed with a defense lawyer that if she had looked down when returning the glass of water, she “probably” would have seen the wires.

Unfortunately, while the plaintiff hired a law firm to represent her in a claim of negligence, the attorney failed to file the Indiana personal injury lawsuit within the relevant statute of limitations. She subsequently filed a complaint for legal malpractice against the law firm. The law firm moved for summary judgment. In granting that request, the trial court noted that to prove causation in a claim of legal malpractice, the plaintiff needed to show that but for the law firm’s negligence, the outcome of the personal injury lawsuit against the hospital would have been more favorable. Therefore, she had to prove the hospital breached its duty to her as a business invitee.

The trial court ruled the plaintiff failed to meet her burden in showing a genuine issue of material fact existed about whether she would have obtained a more favorable outcome. The court noted the legal malpractice claim required her to prove “a case-within-a-case.” The law firm had to show that even if it had filed the claim against the hospital in a timely manner, the plaintiff would have been no better off than in the situation in which its alleged negligence placed her. Thus, if the law firm could show the hospital didn’t breach its duty of care – i.e., the hazard was open and obvious – it wouldn’t have mattered if the lawsuit was timely filed.

The plaintiff needed to show the hospital owed her a duty, it breached the duty, and her injury was proximately caused by that breach. Indiana’s Restatement of Torts holds that landowners are liable for harm to invitees if – and only if – the landowner knew or should have known about the dangerous condition and should have realized it posed an unreasonable risk of harm. Plaintiffs must also show the landowner should have expected invitees would not discover the danger or would fail to protect themselves from that danger, and the landowner failed to exercise reasonable care in protecting invitees.

Here, the plaintiff testified that she had seen the wires and walked over them once, and presumably she would have seen them again had she looked down. Thus, there was no question the plaintiff knew about the hazard. However, the appeals court ruled the trial court never got to the issue of whether the landowner could have and should have anticipated the dangerous condition would cause physical harm to an invitee, notwithstanding its obvious or known danger.

Therefore, the case was remanded back to the trial court for further consideration.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Roumbos v. Vazanellis, Feb. 24, 2017, Indiana Court of Appeals

More Blog Entries: Fair Stage Collapse Not Foreseeable, Indiana Appeals Court Rules, Feb. 16, 2017, Munster Injury Lawyer Blog