Washington Stop-Gap and Your Umbrella: The Employers Liability Gap

Washington workers comp from L&I shields employers from most employee injury suits, but not all. Employees can sue for deliberate injury, and an employer can waive its immunity in a negotiated indemnity agreement. Stop-gap employers liability covers those suits, and most commercial umbrellas require employers liability as underlying insurance. Without stop-gap at the scheduled limit, the umbrella may not respond to employee injury claims at all.

By Trella Commercial · Updated October 5, 2026

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

RouteRuleSource
General immunityAll civil actions for workplace injuries are abolished, except as the workers comp law providesRCW 51.04.010
Deliberate intentionA 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 itRCW 51.24.020; Birklid v. Boeing (1995)
Contractual waiverIn 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 negotiatedRCW 4.24.115
Third-party over actionsAn injured employee sues the general contractor or property owner, who then seeks indemnity from the employer under a waiverRCW 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

CoveredNot covered
Employee injury suits that fall outside L&I immunityWorkers comp benefits, which L&I pays
Liability assumed by contract for employee injuries, if the policy includes itIntentional injury excluded by the policy's own terms
Defense costsEmployment practices claims (that is EPLI)
Consequential claims by family members, where coveredOut-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

IssueWhat goes wrongFix
No stop-gapThe umbrella requires employers liability underneath; employee injury claims may fall outside the umbrellaBuy stop-gap
Stop-gap below the scheduled limitThe umbrella schedules $1 million but stop-gap is $100,000; the gap between them is uninsuredMatch stop-gap to the umbrella's schedule
Different insurers, different termsThe umbrella follows a form the stop-gap does not matchCoordinate forms, or place both with one insurer
Out-of-state employeesIdaho or other state employees need workers comp with employers liability thereAdd 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

Common questions

What is stop-gap coverage in Washington?

Employers liability insurance for Washington employers, bought from a private insurer, that covers lawsuits by employees for workplace injuries that fall outside the protection of the workers comp system, such as deliberate injury claims or liability the employer assumed by contract.

If employees can't usually sue, why do I need stop-gap?

Because immunity has exceptions. Employees can sue for deliberate injury, and employers can waive immunity in negotiated indemnity agreements, which is common in construction subcontracts. Most commercial umbrellas also require employers liability as underlying insurance.

Can an employer waive workers comp immunity in Washington?

Yes, in construction, design, survey, and motor carrier contracts covered by RCW 4.24.115, if the agreement specifically and expressly provides for the waiver and it was mutually negotiated by the parties.

How much stop-gap does an umbrella require?

It depends on the umbrella, but $1 million is common. The stop-gap limit should match the amount listed on the umbrella's schedule of underlying insurance, or the difference is uninsured.

Does stop-gap replace L&I coverage?

No. L&I provides workers comp benefits and is required. Stop-gap is a separate liability policy that covers lawsuits outside the workers comp system.

Sources

This page is general information, not legal advice. Laws were checked against primary sources in October 2026.

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