West Virginia Code of State Rules › Agency 85 - Workers' Compensation › Title 85 - PROCEDURAL RULE WORKERS' COMPENSATION RULES OF THE WEST VIRGINIA INSURANCE COMMISSIONER › Series 85-10 - Primary Contractor Liability › Section 85-10-6 - Extent of Liability

Current through Register Vol. XLI, No. 28, July 12, 2024
6.1. The
				liability which the primary contractor incurs, under the provisions of W. Va.
				Code §
									23-2-1d,
				is the obligation to pay to the commission the true and correct amount of
				premium taxes, premium deposit, late reporting and payment penalties, and any
				interest thereon, as well as administrative charges and attorney fees and costs
				of any actions, that the subcontractor owes to the commission.
6.2. In determining the amount of payments
				due to the commission, the commission is not limited to the amounts of gross
				wages reported by the subcontractor. Rather, the commission may audit the wage
				records of the employer or other pertinent records and determine for itself the
				amounts owed to it. From this audit, the true and correct amount of premium
				taxes, premium deposit, interest and late reporting and payment penalties will
				be determined in calculating the primary contractor's liability.
6.3. Under the provisions of W. Va. Code
				§
									23-2-1d,
				the primary contractor is liable only for the payments due from the
				subcontractor for those employees who are performing work under its contract.
				Payments for gross wages for employees who are engaged in other work for the
				subcontractor unrelated to the contract in issue will not become the liability
				of the primary contractor.
6.4. If
				the same employees of a subcontractor split their time among a number of jobs
				some of which are not related to the contract in issue, then the liability
				imposed by this rule extends only to payments due for the gross wages earned as
				a result of working under the contract in issue. It shall be the primary
				contractor's burden to prove that employee(s) of a subcontractor split time
				among jobs which were not related to its contract with the
				subcontractor.
6.5. If the
				subcontractor's default occurs because of a breach of a prior reinstatement
				agreement, then under the terms of the agreement the full amount of the
				liability becomes due. However, in this event, the primary contractor will not
				be liable for any portion of the reinstatement agreement's liability which
				arose prior to the term or extension of the contract including any interest due
				on the principal of the agreement which was earned during the term or extension
				of the contract after the effective date of this rule.
6.6. In the event that the primary contractor
				makes payment to the commission in the place of the subcontractor, then the
				primary contractor has a legal right to seek reimbursement or indemnification
				from the subcontractor for the amounts paid on its behalf to the commission. In
				addition, the primary contractor may recover its costs of action and attorney
				fees in seeking such reimbursement or indemnification. Such legal right is not
				subject to resolution by the commission. Recovery must be made from the
				subcontractor or through the state's judicial system.