Our insured is an apartment house owner who recently hired a handyman to assist with the replacement of a cracked ceramic sink bowl in a bathroom. With the insured present and providing guidance, the handyman attempted to remove the sink bowl with various tools. Being unsuccessful he climbed onto the base of the sink and attempted to kick the sink to dislodge the bowl. His leg went through the ceramic bowl, severely injuring his leg.

The handyman has performed odd jobs for the insured for at least twenty years and was compensated by the job. At the end of each year he was provided with the required 1099 form.

The workers compensation carrier, State Fund, has denied the claim, taking the position that the handyman was not an employee of our insured. The adjuster he stated the claimant was not paid a wage, did not receive a W-2, and no withholdings were taken.

The CGL carrier has denied the claim based on the workers comp and employee liability exclusion. The denial letter further stated that should a court deem the handyman an independent contractor and not an employee, the insurer would still deny the claim due to lack of negligence on our insured's part.

What we have here is a denial by the workers comp carrier claiming the insured handyman is not an employee and a denial by the CGL carrier claiming the claimant is an employee. I would appreciate your thoughts on the conflicting opinions. If both companies prevail in denying the claim, how should this exposure be covered?

New Jersey Subscriber

Based on the facts you describe, the handyman could not be considered an employee. He sounds like an independent contractor, but you should check with your state's WC laws to see if the state recognizes the handyman as an employee to be certain.

Also, as for the general liability policy, again based on your description of the event, we do not see any negligence on the part of the insured. Now if the insured instructed the handyman to climb on to the base of the sink, that could be negligence, but if the handyman decided to do that on his own, we would agree with the general liability insurer.

The way this should be covered is through the handyman's own health care coverage. We do not see him as an employee of the insured, and we do not see negligence on the part of the insured, so WC and general liability coverage through the insured is not there.

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