The short version
- L&I coverage includes no employers liability. Washington does not allow private workers comp, and L&I's coverage is no-fault benefits for injured workers, not liability insurance for the employer.
- Immunity has exceptions. Employees can sue for injuries caused by the employer's deliberate intention (RCW 51.24.020), and employers can waive immunity in construction and motor carrier indemnity agreements (RCW 4.24.115).
- Stop-gap is the fix. Private stop-gap (employers liability) coverage defends and pays those suits. It is an industry term; you will not find it on L&I's site.
- Umbrellas usually require it underneath. Most commercial umbrellas list employers liability on the schedule of underlying insurance, often at $1 million.
- The gap is common: an umbrella scheduling stop-gap at a limit the business does not actually carry, or no stop-gap at all.
Why Washington employers can still be sued by employees
| Route | Rule | Source |
|---|---|---|
| General immunity | All civil actions for workplace injuries are abolished, except as the workers comp law provides | RCW 51.04.010 |
| Deliberate intention | A worker injured by the employer's deliberate intention may sue for damages beyond benefits; that means the employer had actual knowledge injury was certain to occur and willfully disregarded it | RCW 51.24.020; Birklid v. Boeing (1995) |
| Contractual waiver | In construction, design, and motor carrier contracts, an indemnity clause may waive the employer's Title 51 immunity only if the agreement specifically and expressly provides for it and the waiver was mutually negotiated | RCW 4.24.115 |
| Third-party over actions | An injured employee sues the general contractor or property owner, who then seeks indemnity from the employer under a waiver | RCW 4.24.115; Brown v. Prime Construction (1984) |
Construction subcontracts often contain indemnity clauses that address this waiver. When a negotiated waiver applies, a subcontractor's own employee injury can become a liability claim against the subcontractor through indemnity.
What stop-gap covers
| Covered | Not covered |
|---|---|
| Employee injury suits that fall outside L&I immunity | Workers comp benefits, which L&I pays |
| Liability assumed by contract for employee injuries, if the policy includes it | Intentional injury excluded by the policy's own terms |
| Defense costs | Employment practices claims (that is EPLI) |
| Consequential claims by family members, where covered | Out-of-state workers comp benefits (that is a separate workers comp policy) |
Check that stop-gap covers liability assumed under contract if you sign construction or motor carrier contracts with immunity waivers.
The umbrella connection
| Issue | What goes wrong | Fix |
|---|---|---|
| No stop-gap | The umbrella requires employers liability underneath; employee injury claims may fall outside the umbrella | Buy stop-gap |
| Stop-gap below the scheduled limit | The umbrella schedules $1 million but stop-gap is $100,000; the gap between them is uninsured | Match stop-gap to the umbrella's schedule |
| Different insurers, different terms | The umbrella follows a form the stop-gap does not match | Coordinate forms, or place both with one insurer |
| Out-of-state employees | Idaho or other state employees need workers comp with employers liability there | Add other-states coverage |
Idaho employers get employers liability as part of their workers comp policy, so this gap is specific to Washington employees. See Idaho workers comp.
Who should look closest
- Contractors signing subcontracts with immunity waivers; see general contractors
- Trucking and motor carriers with indemnity in transportation contracts
- Cleaning, property services, and manufacturing businesses with higher injury exposure
- Any Washington employer whose umbrella schedules employers liability