The New York Court of Appeals heard oral arguments this past session in Boles v. Dormer Giant, Inc., a case that raises an important question concerning Workers’ Compensation Law sec. 11.  The injured plaintiff’s employer failed to provide workers’ compensation coverage for the injured plaintiff.  Thus, the third-party plaintiff — the general contractor for this job — argued that section 11 did not bar its third-party action against the injured plaintiff’s employer even though the injured plaintiff did not experience a "grave injury" and an indemnification contract did not exist between the general contractor and subcontractor.

The general contractor argued that section 11 should not bar an action against an injured plaintiff’s employer where that employer failed to provide workers’ coverage for that employee.  This argument makes sense — isn’t the basis of requiring an employer to pay workers’ compensation benefits based on the bargain that the employee cannot commence an action against it?  Why should the employer avoid paying workers’ compensation benefits and liability?