Construction Accident Insurance Coverage
Construction projects are inherently risky endeavors, and from an Owner Developer’s perspective the management of risks is crucial to the successful completion of any project. One of the key tools in risk management for construction projects is Owner-Controlled Insurance Programs (OCIP). Owner-Controlled Insurance Programs often play a role in construction accident cases, and these unique policies frequently impact many aspects of an injured tradesperson’s case under the New York State Labor Law. For a client dealing with a construction accident injury as well as the attorney handling their claim, it is important to understand what an OCIP is and to recognize how it may impact distinct portions of the injured workers claim and eventual resolution of a personal injury case originating out of the accident.
Owner-Controlled Insurance Programs (OCIP), sometimes referred to as "wrap-up" insurance, are insurance policies initiated and controlled by the project owner (often a developer or a public entity) to provide coverage for multiple parties involved in a construction project. OCIP’s are all-encompassing insurance plans designed to cover nearly all liability risks arising from a construction project including general liability, workers' compensation, and excess liability insurance.
The General Liability Insurance portion of the OCIP policy provides coverage for lawsuits against the owner and the contractors for bodily injury. The Workers' Compensation Insurance component provides coverage for injured worker medical treatment and lost wage payments. Excess Insurance provides additional coverage beyond the general liability insurance limits and is applicable in catastrophic injury cases where workers are dealing with extensive and severe injury claims that will require lifelong medical treatment and financial support for lost wages and union or health insurance benefits due to the injuries they sustained at the construction site.
Owner Controlled Insurance Programs are often referred to as wrap-up policies because they provide for coverage for multiple parties at the construction site and allow the administrator of the program to streamline claims processing, handling, and resolution. Some widely recognized benefits of OCIP insurance to the Owner Developer are cost savings by bundling insurance coverage to secure favorable terms and premiums, hands on administration of the various components of claims, and coordinated consistent coverage which often works to minimize disputes between various parties and subcontractors at the jobsite.
While Owner-Controlled Insurance Programs insurance is a valuable tool for managing risk for the various parties and contractors, many aspects of such policies are important for tradespeople injured on a jobsite to be generally aware of. Several of our recent construction accident settlements illustrate both the importance of and the potential impacts these policies may play in the prosecution of construction accident cases.
1.1 million dollar settlement for a 62 year old union carpenter injured in a fall from a ladder
“If you know the enemy and know yourself, you need not fear the result of a hundred battles.”
-The Art of War, Sun Tzu
At the time of the accident our client was a sixty-two-year-old Local 157 union carpenter. The superintendent on the jobsite asked him to install sheetrock on a structural column several feet off the ground. Our client, a carpenter foreman, was experienced enough to tell the super that he either needed a baker scaffold or a helper to assist, but like often happens on construction sites, speed was prioritized over safety, and he was told to use the equipment he was given. While carrying sheetrock up the ladder our client fell from the third step striking his knee on the floor below. Initially hoping the pain would go away over time he did not follow up with a doctor for several months. Eventually over a year after the accident, our client had to undergo arthroscopic surgeries on both knees.
After discovery, we moved for summary judgment on the issue of liability under Section 240(1) of the New York State Labor Law. In many construction accident cases at the end of discovery we will file a motion with the Court to win the liability portion of our client’s case on the grounds that the defendant’s negligence is clear. While we were not surprised, our client was understandably shocked when, in opposition to our motion, the defendant introduced several notarized statements from various people at the construction site attempting to cast doubt on our client’s account of the accident. The coordinated attack using several former co-workers to cast doubt on a series of seemingly small facts, when viewed collectively, could have provided a ground for the Court to deny our motion. Angry and understandingly feeling betrayed, the client took comfort in the fact that having fought similar battles in prior cases, we had anticipated the defendants orchestrated attack and had proactively accumulated evidence and statements to disprove their late hour claims. Emboldened by our foresight, preparation, and confident that we stood on the right side of the truth, we pushed ahead and successfully settled this matter on favorable terms for our very deserving client.
$625,000 settlement in scaffold collapse
“Time is Money.”
– Advice to a Young Tradesman, Benjamin Franklin
While working at a construction site the scaffold our client was standing on shifted and the planks on the platform collapsed, requiring our client to grab onto the pipe he was working on to prevent himself from falling to the ground below. While our client’s quick thinking prevented a potentially more serious fall, the pressure exerted on his shoulder re-aggravated a prior surgical repair.
Our client underwent an arthroscopy and quickly returned to work. He was eager to put the accident behind him and was interested in resolving the matter quickly and efficiently without spending years in litigation. Recognizing the insurance coverage and using our prior experiences with the insurance carrier holding the wrap policy, we were able to schedule an early mediation and resolve the matter to the satisfaction of all involved only months after filing a lawsuit. We went into the mediation armed with preliminary expert reports on the issues we knew would be contested, and after several hours of negotiation, were able to capitalize on the insurance carrier’s clear desire to avoid protracted costs and future exposure uncertainty.
$450,000 settlement in trip over construction debris
“So if you don’t mind me sayin’ I can see you’re out of aces, for a taste of your whiskey, I’ll give you some advice”
- The Gambler, Kenny Rogers
Our client, a carpenter, tripped over debris at a construction site injuring his shoulder. The owner and contractors we sued evaluated the case and made a settlement offer, which our client found reasonable and was initially inclined to accept. Despite the insurance companies veiled threat that they had made their best and final offer, we told the client to stay the course and reject “the best and final” settlement offer that had been presented to us. As we anticipated, several weeks after rejecting the offer, the primary defendants all operating under the same wrap policy initiated a third-party lawsuit against a company who was not within the wrap. While there was a several week delay while the new company appeared in the action, the case shortly thereafter settled for a significantly higher figure with a large portion being contributed by the third-party defendant who introduced a new layer of insurance coverage to the case.
Several hundred thousand dollar settlement for tradesman injured in fall at a construction site
“Don’t bullshit a bullshitter.”
Breaking Bad – Walter White
After being injured during the early stages of work on a new build office tower, our client, while in clear pain, was escorted by site safety to an “onsite” medical provider who examined him in his employer’s work shanty. While in the shanty, a “pre-hospital care report” was drafted by a “medical provider” operating under a contract with the developer and their agents. While this may sound efficient, and even upon first glance to be in the best interest of the client, these onsite medical reports must be scrutinized and handled in a manner that exposes what they often are: carefully crafted reports drafted by interested parties that aim to minimize the client’s injury. For instance, despite a serious fall, the pre-hospital care report in this matter attempted to limit and downplay the client’s injury by noting that the clients injured extremity only exhibited minor redness, no swelling, no numbness, had had a full range of motion. The report also claims that the client described his pain level as a 2 out of 10 and indicated that he did not need further medical attention after being provided an ice pack. Importantly, in this matter and many others like it, the report only notes the “patient’s” primary complaint as limited to a single body part. Putting aside the fact that an unqualified individual who had been working in the restaurant industry one year earlier was suddenly drafting official sounding medical documents and referring to my client as his “patient”, the report stood in contrast to the impressions of multiple witnesses and common sense.
While an experienced construction accident attorney knows what they are looking at and how to handle these “medical reports”, the unfortunate reality is that once they are “crafted and drafted”, these reports frequently make their way into official and important documents such as the accident report, workers compensation forms, and even treatment histories by subsequent medical providers. Whenever I come across one of these reports or a similarly questionable record from an urgent care facility which contracted with the jobsite to provide “day of” assessment for all worker injuries, I am reminded of a fond memory from my early days trying cases as an Assistant District Attorney. In Nassau County, those arrested for driving while intoxicated were taken to Central Testing, where police officers in a white lab coat would conduct a breath test on a specialized machine. Often at trial, defense attorneys would question the reliability of the machine and whether the police officer operating the machine was truly an expert in its handling. A well-liked police officer who heroically passed away much too soon was once being questioned by a sharp defense lawyer, who grandstanding before the jury, pointed out the obvious; these officers wore the white lab coats to impress upon the jurors their competence and neutrality. “Officer, would you agree with me that you wear the lab coat so you look like a scientist?” Without missing a beat, the well-liked officer deadpanned in his heavy Italian accent, “I think I look more like a butcher.” We were still laughing when the jury unexpectedly returned a verdict of not guilty later that afternoon. Jurors want to do the right thing, and they listen, and they think about what they hear and the motivation of those saying it. They also recognize BS when they hear it, and, as such, I am of the opinion that when confronted with these biased reports it is important to lean into them and turn them into an advantage rather than a liability.
If you are looking for an attorney to represent you in a New York construction accident, feel free to reach out to discuss how I can put my experience and the lessons I have learned along the way to work for you.
ATTORNEY ADVERTISING. Prior Results do not guarantee similar Outcomes. Contacting Attorney Adam C. Raffo does not establish an attorney-client relationship. Nothing on this informational website should be taken as legal advice for any individual case or situation. This website and the content herein is for information and educational purposes only and does not constitute legal advice.
