Every primary contractor should be responsible to ensure that any subcontractor with which it directly contracts maintains worker’s compensation coverage. If an employee of a subcontractor suffers an injury, his or her employer or primary contractor is liable. If employer or the contractor did not have compensation coverage, such employee may file a claim against the prime contractor for which the subcontractor performed services. Such claim shall be administered in the same manner as claims filed by injured employees of the prime contractor.
Furthermore, if a claim of an injured employee of a subcontractor is accepted into the Uninsured Employer Fund, both the prime contractor and subcontractor are jointly and severally liable for any payments made by the fund. However, a prime contractor who is liable for the payment of benefits to an injured employee of a subcontractor may recover the amount of such payments from the subcontractor. Reasonable attorneys’ fee and costs also may be recovered from such subcontractor. Provided, however, if such prime contractor has performed due diligence in all matters requiring a subcontractor’s maintenance of insurance coverage, then the prime contractor is not liable for any claim made against the subcontractor.[i]
[i] W. Va. Code § 23-2-1d