Who is responsible for the death of a subcontractor when he was performing prescribed tasks?
Full Question:
Answer:
The answer may depend upon the nature of the job, and the probable cause of death. According to the federal agency, OSHA (Occupational Safety & Health Administration),
any contracting company hiring subcontractors must comply with all safety regulations pertaining to the type of work being performed.
A subcontractor is an individual or a company that is hired to work for another contractor. The main contractor may hire many types of subcontractors, often through a job-bidding process.
An example of a subcontractor might be a company who does electrical work. A contract company has been hired by a corporation to build a hotel. The contract company will usually hire plumbers, electricians, and a variety of other types of companies to complete a particular job.
A company or organization that hires contract workers is responsible for the safety of those workers. The contract company that hires subcontractors is also responsible for the safety of the subcontractors.
According to OSHA Standard 1926.16, any injury or death of a subcontract worker will become the responsibility of the host company. The host company has the burden of proving that the worker was properly trained, and that the working conditions were safe.
Also responsible for safety of workers are the contractor and the subcontractor company, yet the host company carries the ultimate responsibility.
If the death was related to an oilfield project, then the Louisiana Anti-Indemnity Act may be applicable.
In the oilfield, operators typically enter into Master Service Agreements with various contractors who supply services and materials needed in connection with the many and varied oilfield operations. The Master Service Agreements usually require the contractor to indemnify the operator against any claims arising out of or in connection with the services and materials supplied by the contractor, whether caused by the contractor’s or owner’s negligence. The contractors are also generally required to carry minimum amounts of insurance coverage and to include the operator as an additional insured under their insurance policies.
Most states place limitations on contractual indemnity agreements, particularly agreements that indemnify a party against the consequences of its own negligence, and have prohibitions against such agreements in certain circumstances. However, four states–Texas, Louisiana, New Mexico and Wyoming–have statutes specifically prohibiting certain indemnity agreements contained in or related to oilfield contracts, generally referred to as Oilfield Anti- Indemnity Acts.
The Louisiana Anti-Indemnity Act, which is representative of the four Acts, provides that:
Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent Contractor who is directly responsible to the indemnitee.
The statutory language leaves open the question of whether any specific indemnity agreement is “collateral to” or “affects” an agreement which “pertains to” a well or the drilling for minerals. As a result, there has been a fair amount of litigation to determine whether particular agreements come within the scope of the Oilfield Anti-Indemnity Acts. In general, the courts in Texas, Louisiana, New Mexico and Wyoming do not apply their Oilfield Anti-Indemnity Acts to agreements for general oilfield work, but only to those agreements which have a not too attenuated relation to the operation, maintenance or repair of a distinct oil, gas or other mineral well or wells.
The Louisiana statute is the clearest of the 4 states in invalidating insurance coverage of indemnity agreements prohibited by its Oilfield Anti-Indemnity Act. The Louisiana Oilfield Anti- Indemnity Act provides that:
Any provision in any agreement arising out of the operations, services or activities listed in Subsection C of this section of the Louisiana Revised Statutes of 1950 which requires waivers of subrogation, additional named insured endorsements, or any other form of insurance protection which would frustrate or circumvent the prohibitions of this section, shall be null and void and of no force and effect.
The courts have created a judicial exception to this prohibition, known as the Marcel exception. This exception allows insurance coverage of an indemnity provision prohibited by the Louisiana Oilfield Anti-Indemnity Act when the party being indemnified pays for its own insurance coverage and no material part of the cost of insurance is borne by the party procuring the coverage. In addition, the Louisiana Supreme Court has held that a waiver of subrogation clause is not invalidated by the Louisiana Oilfield Anti-Indemnity Act where such a clause is not enforced in conjunction with the enforcement of an indemnity obligation, and, thus, does not shift liability from the tortfeasor operator to the contractor in circumvention of the Louisiana Oilfield Anti-Indemnity Act.
