Responsibility. Much of society and certainly the law are based on who will take responsibility. In Illinois, unfortunately, it won’t be those that hire independent or subcontractors.
Separation between independent and general contractors
From a negligence perspective, Illinois common law maintains a separation of liability between independent and general contractors. Given the absence of a contract, or other factors discussed later, one who hires an independent or subcontractor is not responsible for the negligence of that person or company. In terms of subrogation this can be quite frustrating. Take a case in which an insured hires a contractor for installation of a satellite dish. That contract, which of course is hardly negotiable by the homeowner, includes a waiver for any damage or negligence on the part of any subcontractor that is retained to perform the work. A fire occurs and the expert points to the installation of the satellite. However, that subcontractor is one man and he didn’t have insurance. There is no path to get back to the original contractor. In all likelihood, because the subcontractor didn’t have insurance and a waiver exists, they have avoided responsibility and legal liability.
So the first thing to look to in any case involving independent and subcontractors is the contract(s). You will want to review the contract between your insured and the individual or company they hired and the contract between the contracted company and their subcontractor. Make no mistake; you will have a better claim without the presence of contractual waivers.
Other cases may involve construction and general contractors as well as subcontractors. (The topic of workers’ compensation subrogation claims, involving construction, is different and far too lengthy discuss here.) An example may be your homeowner has neighbors that are doing a remodel. As the subcontractor is working with a blowtorch, a fire begins at the neighbor’s home and spreads – causing damage to your insured’s property. Later, an investigation reveals the subcontractor doing the work at the neighbor’s home was not insured. Can you go to the general contractor? In some cases, dictated by Section 414 of the Restatement of Torts, you can. You should seek to determine the level of control the general contractor retained over the subcontractor. Certain duties such as how the work is performed, when it is performed, what tools are used, and who provides tools may reveal the pecking order. Lastly, determining where and how the subcontractor takes direction and receives material may be difficult, but just as telling.
Best case and weak case against a subcontractor
An example of a best case would be a subcontractor was hired, told when, where and exactly how to do the work by the general contractor with that general contractor providing the tools and materials to do it. A weak case would be if the subcontractor was hired with a clearly formed contract and given only detail of what they were to accomplish on the site, without instruction and providing all of their own tools and materials.
There are an infinite number of fact patterns, all in varying forms, that may emerge. All said and done, it is best to have an attorney review. Even with the number of uninsured and irresponsible subcontractors out there, do not give up! Just because the general contractor didn’t perform the work, doesn’t mean that they’re off the hook for their subcontractors negligence. Get Keis George involved and we will help you get the general contractor. For this and other information, schedule a consultation with one of our Illinois subrogation attorneys.