When a subcontractor's worker is hurt on a New York jobsite and sues the general contractor, whether the GC can pass that loss back to the sub's employer comes down to one statute: Workers' Compensation Law §11. It bars common-law indemnity against the employer unless the worker suffered a narrowly defined "grave injury" — or unless there's a written, pre-accident indemnity agreement. Most serious injuries don't make the grave-injury list, which is why the written subcontract is everything.
Workers' Comp · New York · Regulated by NY DFS · Workers' Comp in New York
New York Workers' Compensation Law §11 bars a general contractor or owner from recovering common-law contribution or indemnity from an injured worker's own employer unless the worker suffered a statutorily defined "grave injury" — or the employer signed a written contract, before the accident, agreeing to indemnify the upstream party. The "grave injury" list is closed and read literally: death, amputation or total/permanent loss of use of an arm, leg, hand, or foot, loss of multiple fingers or toes, paraplegia or quadriplegia, total/permanent blindness or deafness, loss of nose or ear, severe permanent facial disfigurement, loss of an index finger, or an acquired brain injury causing permanent total disability. Because most real injuries don't qualify, the GC's only practical path to push the loss back to the sub is an enforceable written pre-loss indemnity clause.
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New York's workers' compensation system rests on the same grand bargain as every state's: an injured worker collects comp benefits from their own employer and, in exchange, generally cannot sue that employer in tort. The employer trades certain (but capped) benefits for immunity from lawsuits. That immunity lives in Workers' Compensation Law §11.
But there's a second, less obvious thing §11 does — and in construction it's the thing that matters most. The 1996 Omnibus Workers' Compensation Reform Act amended §11 to also bar third parties (like a general contractor or property owner) from getting common-law contribution or indemnity from the worker's employer. Before 1996, a GC sued by an injured sub's worker could implead the sub's employer and make it share the loss under Dole v. Dow apportionment. After the 1996 reform, §11 slammed that door shut — with only two exceptions.
So §11 protects the employer twice over: from suit by its own worker, and from a pass-back claim by the upstream GC or owner. Understanding the two narrow exceptions is the whole game for New York contractors managing risk transfer.
Under §11, a GC or owner can recover from the injured worker's employer only if one of two things is true:
These two paths are independent. A GC with a properly drafted, pre-accident written indemnity clause can recover from the sub's employer even for a non-grave injury. A GC with no such clause can recover only if the worker's injury clears the grave-injury bar. Because that bar is so high (next section), the written clause is, in practice, the recovery route that actually works most of the time.
The single most important thing about §11 is that the "grave injury" definition is a closed, exhaustive list — and New York courts read it literally and narrowly, refusing to expand it by analogy. The statutory categories are only these:
The literal reading bites hard. New York's high court has held, for example, that the loss of use of a hand is not the same as the statutory "amputation or permanent and total loss of use," and that a brain injury qualifies only if it produces permanent total disability — a very high threshold. Partial or even severe-but-recoverable injuries fall outside the list.
The result: the vast majority of serious construction injuries — herniated discs, back injuries, single-limb fractures, partial loss of use, most head injuries short of permanent total disability — do not qualify as grave. With no grave injury and no written indemnity, the GC simply has no way to recover from the sub's employer and eats the loss.
Put the pieces together and you see why New York GCs are obsessive about subcontract paperwork. Because the grave-injury exception almost never applies, the written pre-accident indemnity clause is, in the typical claim, the GC's only practical route to push an injured worker's loss back to the sub who actually employed them.
That makes two documents decisive on every New York job:
There's a catch on the clause itself. New York's anti-indemnity statute, General Obligations Law §5-322.1, voids any construction-contract indemnity that would make the sub cover the GC's or owner's own negligence — "whether in whole or in part." To survive both §11 and §5-322.1, the clause has to be limited to the sub's fault (and/or the fault of parties other than the GC), usually drafted with a "to the fullest extent permitted by law" savings qualifier. New York courts will enforce a properly limited partial-indemnity clause but strike one that demands full indemnity for the GC's own fault.
§11 is the workers'-comp engine sitting underneath the New York "action over" claim. Here's the full chain: a sub's worker is hurt, collects comp from the sub (barred from suing their own employer by §11's first function), then sues the GC and owner — typically under New York's Labor Law §240/§241 strict-liability statutes. The GC, now a defendant, tries to "action over" against the sub's employer to pass the loss back. Whether that pass-back succeeds is governed by §11: grave injury or written pre-loss indemnity, or nothing.
And even a valid indemnity clause only helps if the sub's general-liability policy actually covers the assumed obligation. NY carriers routinely attach "action over" / employer's-liability exclusions and contractual-liability limitations (like CG 21 39) that strip the very coverage the indemnity relies on. So the GC needs all of it to line up at once: a non-grave injury still recoverable because there's a §11-compliant written clause, that clause enforceable under §5-322.1, and the sub's GL free of an action-over exclusion so the carrier actually pays.
For the general-liability side of this — the action-over exclusion, the insured-contract exception, and the endorsements that strip coverage — see our companion explainer on action over coverage for New York contractors under General Liability. This page covers the workers'-comp statute (§11) that decides whether the indemnity claim is even available; that page covers whether the GL policy will fund it.
Because §11 turns on documents that have to exist before an accident, the work is all front-loaded. A defensible New York program means:
Acolite is a licensed brokerage, not an insurer. We place New York contractor workers' compensation and the general-liability coverage that has to stand behind a §11 indemnity, with appointed carriers and surplus-lines markets, subject to underwriting — and we audit a sub's GL for the action-over and contractual-liability exclusions that can defeat the transfer even when the indemnity clause is valid. This page is informational only and isn't legal advice; consult counsel on indemnity drafting and verify coverage with the New York Workers' Compensation Board.
These are the gaps that competitors gloss over and that cause denied claims or rejected certificates.
§11 lets you recover from the sub's employer only on a grave injury or a written pre-loss indemnity clause. Without a signed clause in place before the accident, you're relying on the grave-injury exception — which the courts read so narrowly that most serious injuries don't qualify.
Loss of use isn't the same as amputation; a brain injury qualifies only with permanent total disability. Courts won't expand the list by analogy, so herniated discs, back injuries, single-limb fractures, and most head injuries fall outside it — and outside common-law indemnity.
An indemnity clause that makes the sub cover the GC's own negligence "in whole or in part" is void under New York's anti-indemnity statute. Draft it limited to the sub's fault with a "to the fullest extent permitted by law" qualifier, or the §11 contractual exception you're relying on may collapse.
An indemnity promise is only as good as the policy behind it. NY carriers routinely attach action-over / employer's-liability exclusions and CG 21 39 contractual-liability limits that strip coverage for the assumed obligation. Verify the sub's GL is free of them — see our action-over page.
§11's contractual exception requires the written indemnity to be entered into before the accident. A clause signed after work starts — or never reduced to writing — won't satisfy the statute. Get the subcontract executed before the sub mobilizes.
An action-over analysis assumes a real comp claim sits underneath. Confirm the sub carries New York workers' comp for the duration of the job against the Workers' Compensation Board's records, not just a certificate that may be expired or cancelled mid-term.
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| Factor | Impact | Detail |
|---|---|---|
| Trade hazard / Labor Law §240 height exposure | Major | High-hazard, work-from-height trades drive the severe injuries and large §240/§241 verdicts that make §11 risk-transfer matter — and they carry far higher workers' comp and GL rates than ground-level classes. |
| Workers’ comp class code and payroll | Major | New York comp is rated by class code and payroll through the state rating system. Higher-hazard construction codes carry materially higher manual rates, and payroll volume is the exposure base. |
| Action-over / contractual-liability coverage on the GL behind the clause | Major | A §11 indemnity only pays if the sub's GL covers it. GL written without action-over or contractual-liability exclusions costs more than a stripped policy — but the cheaper policy omits the exposure §11 risk-transfer depends on. Often an E&S placement in NY. |
| Experience modification | Moderate | A New York contractor's experience modifier reflects prior comp claims and moves premium up or down; a favorable mod is also frequently required below 1.0 to win GC and public bids. |
| Owner inclusion / officer treatment | Moderate | How owners and officers are included or excluded on the comp policy affects the rated payroll and therefore premium, within New York's rules on owner coverage. |
| Limits and excess tower | Moderate | Because severe §240 injuries and grave-injury claims can exceed primary limits, higher GL limits and an excess/umbrella tower add premium — and large NY contracts often demand combined limits only reachable by stacking a tower. |
It's a closed statutory list that lets a GC or owner pursue common-law indemnity from an injured worker's employer: death, amputation or total/permanent loss of use of an arm, leg, hand, or foot, loss of multiple fingers or toes, paraplegia or quadriplegia, total/permanent blindness or deafness, loss of nose or ear, severe permanent facial disfigurement, loss of an index finger, or a brain injury causing permanent total disability. Courts read it literally and won't expand it.
§11 gives the worker's employer two layers of protection: the worker generally can't sue their own employer in tort, and a third party like a GC or owner can't get common-law contribution or indemnity from that employer — unless the worker suffered a grave injury or the employer signed a written pre-accident indemnity agreement.
Through the written-contract exception. If there's a written indemnity clause entered into before the accident, the GC can recover from the sub's employer even for a non-grave injury — provided the clause is enforceable under New York's anti-indemnity statute, GOL §5-322.1. That's why the signed subcontract is the practical recovery route.
No. Back injuries, herniated discs, single-limb fractures, and partial loss of use fall outside the closed grave-injury list. Courts read §11 narrowly, so these serious-but-non-catastrophic injuries don't qualify — meaning recovery from the sub's employer depends on a written pre-loss indemnity clause.
No. §11 bars the worker from suing their own employer, but not from suing the GC or owner. In New York, Labor Law §240/§241 make the GC and owner strictly liable for many height injuries, so those direct suits are common — and §11 then governs whether the GC can pass the loss back to the sub's employer.
§11 is the workers'-comp statute that decides whether a GC's indemnity claim against the sub's employer is even available (grave injury or written pre-loss indemnity). Action-over coverage is the general-liability side — whether the sub's GL policy will actually pay that indemnity, or whether an action-over exclusion strips it. You need both to line up. See our NY action-over page.
Yes. §5-322.1 voids any construction indemnity that covers the GC's or owner's own negligence "in whole or in part." To survive both §11 and §5-322.1, the clause must be limited to the sub's fault, usually with a "to the fullest extent permitted by law" qualifier. An overbroad clause can be struck, taking your recovery route with it.
Before the accident. §11's contractual exception requires a written indemnity entered into before the loss. A clause signed after work begins, or never put in writing, won't satisfy the statute — so the subcontract should be fully executed before the sub mobilizes.
New York pairs Labor Law §240/§241 strict liability for height injuries with large downstate verdicts. Carriers price that severity tail, and the GL coverage that has to fund a §11 indemnity — written without action-over exclusions — costs more because it covers the exposure that actually causes catastrophic NY losses.
Acolite is a licensed brokerage, not an insurer. We place New York contractor workers' comp and the general-liability coverage that has to stand behind a §11 indemnity, with appointed carriers and surplus-lines markets subject to underwriting, and we audit a sub's GL for the action-over and contractual-liability exclusions that can defeat the transfer. We're not a law firm — consult counsel on indemnity drafting.
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