Opinion
No. 71-372
Decided November 14, 1972. Rehearing denied December 5, 1972. Certiorari granted January 29, 1973.
Injured employee of general contractor accepted workmen's compensation benefits from his employer's insurer and subsequently brought negligence action against subcontractor. From dismissal of the action, employee appealed.
Reversed
1. WORKERS' COMPENSATION — Subcontractor — Not Employer — Injured — Employee of General Contractor — "Third-Party" — Subject to Suit — Personal Injury Action. Where plaintiff in personal injury action was employee of general contractor on job of demolishing building, and defendant, a subcontractor on that job, was not in any sense an employer of plaintiff nor responsible to plaintiff under the workmen's compensation statutes, defendant is a "third-party" under terms of workmen's compensation statute and is subject to suit by plaintiff.
Appeal from the District Court of the City and County of Denver, Honorable George S. McNamara, Judge.
Almon and Barsotti, Charles Ginsberg, for plaintiff-appellant.
Darwin D. Coit, for defendant-appellee.
Plaintiff was employed by B and L Wrecking Company, a general contractor engaged in demolishing a building. Defendant, Frohlick Crane Service, contracted with B and L to furnish a crane for the project, together with employees to operate and service it. Plaintiff was allegedly struck by the crane and injured. Workmen's compensation was accepted by plaintiff from B and L through its insurance carrier, the State Compensation Insurance Fund. Subsequently, plaintiff brought this action against Frohlick for negligence.
The action was dismissed by the trial court upon defendant's motion for summary judgment based upon C.R.S. 1963, 81-9-1. The trial court concluded that an employee of a general contractor could not sue a subcontractor on the same job when both the subcontractor and general contractor were insured under workmen's compensation.
An injured employee is not precluded from bringing an action against a third party tort-feasor by electing to accept benefits under the workmen's compensation act. Krueger v. Merriman Electric, 29 Colo. App. 492, 488 P.2d 228. In Krueger, C.R.S. 1963, 81-9-1, was construed to protect from a negligence action only those statutorily liable under the workmen's compensation statutes.
Defendant relies on Nicks v. Electron Corp., 29 Colo. App. 114, 478 P.2d 683. In that case, an employee of a subcontractor was barred from suing the general contractor by application of C.R.S. 1963, 81-9-1. The contractor was held to be an "employer" under the statute which placed on the general contractor ultimate responsibility for the payment of benefits under the act for the injury or death of an employee of the subcontractor.
[1] In the present case, plaintiff is an employee of the general contractor. Defendant, as a subcontractor, is not in any sense an employer of plaintiff and is not responsible under the workmen's compensation statutes. Hence, defendant is not an "employer" under C.R.S. 1963, 81-9-1, and is a "third party" subject to suit by plaintiff.
We reverse and remand for further proceedings consistent herewith.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.