Can You Get a Cash Advance on a Construction Accident Case?

By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.

Comp covers the employer; others can be sued

Workers’ comp is usually the only remedy against your own employer. In California, where the conditions of compensation are met, the right to comp is the employee’s exclusive remedy against the employer, with narrow exceptions such as a willful physical assault by the employer (Lab. Code 3602). In Texas, comp “is the exclusive remedy of an employee covered by workers’ compensation” against the employer, although a surviving spouse or heirs may seek exemplary damages for a death caused by the employer’s intentional act or gross negligence (Lab. Code 408.001).

The comp claim does not erase claims against others. California says a comp claim “does not affect” the worker’s right of action for all damages “against any person other than the employer” (Lab. Code 3852). Washington lets an injured worker “elect to seek damages from the third person” when someone “not in a worker’s same employ” is liable (RCW 51.24.030(1)). Our FAQs on construction accident third-party claims and suing your employer for a work injury go through who can be named.

Why comp money itself cannot back an advance is covered on our workers’ comp settlement advance page. This page is about the third-party claim.

California: the Privette rule

Construction sites are full of companies that hired other companies. In 1993 the California Supreme Court held that a party who hires an independent contractor generally cannot be held liable, under the peculiar risk doctrine, to the contractor’s own employees for work injuries that comp covers (Privette v. Superior Court). So if a general contractor hired your employer, expect it to rely on Privette.

The rule has limits. In 2002 the court held that a hirer is liable to a contractor’s employee insofar as the hirer’s exercise of retained control affirmatively contributed to the injury. Simply keeping the right to control safety is not enough (Hooker v. Department of Transportation). Claims against companies that did not hire your employer, such as a separate subcontractor whose crew caused the harm, rest on ordinary negligence rules. A defective lift, saw or scaffold part can also support a claim against its maker; see our product liability page.

For a funder, a claim against a hirer that depends on the Hooker exception carries more risk than one against an unrelated company. Expect questions about who hired whom and who controlled the work.

Texas: non-subscribers and property owners

Texas employers generally choose whether to carry comp (Lab. Code 406.002). If your employer did not, you may sue the employer directly. In that suit the employer cannot defend on the grounds that you were contributorily negligent, assumed the risk, or were hurt by a co-worker’s negligence, but you must still prove negligence by the employer or its agent (Lab. Code 406.033). Our guide on Texas non-subscriber work injuries covers these cases.

Property owners get a separate shield. For injuries to a contractor’s or subcontractor’s employee who builds, repairs, renovates or modifies an improvement to real property, the owner is not liable unless it “exercises or retains some control over the manner in which the work is performed,” beyond ordering work to start or stop or inspecting progress, and “had actual knowledge of the danger or condition” and failed to adequately warn (Civ. Prac. & Rem. Code 95.003).

Washington: the general contractor’s duty

Washington puts more weight on the general contractor. The state Supreme Court held that “the general contractor has a duty to comply with all pertinent safety regulations” and “should bear the primary responsibility for compliance with safety regulations” on the site (Stute v. P.B.M.C.). When you sue a third party, you must notify the Department of Labor and Industries or the self-insured employer when the action is filed, and it may intervene to protect its share (RCW 51.24.030(2)). How the recovery is split with L&I is explained in our Washington third-party guide.

How the comp lien shapes an advance

Each state lets the comp payer recover what it paid out of a third-party recovery, and each lets it claim a credit against future benefits; the statutes are listed on our workers’ comp page. A funder’s payoff comes out of what is left after fees, costs and that comp share.

Example only, with round hypothetical numbers: a third-party case settles for $200,000. Hypothetical fees and costs of $70,000 and a comp reimbursement of $60,000 leave $70,000. An advance whose payoff has grown to $15,000 would leave $55,000, and the comp carrier may then pay no further benefits for a time because of its credit. Washington uses its own distribution formula, so the figures there would differ. Your fee agreement, the comp lien and the funding contract decide the real numbers. See how a lawsuit advance is paid back and funding and medical liens for the order of payment.

What to ask before you sign

• Does the contract name only the third-party claim and leave comp benefits out?
• Who hired your employer, and does your lawyer expect a Privette or Texas chapter 95 defense?
• Was any equipment involved that could support a product claim?
• How large is the comp lien today, and how much future credit could the carrier claim?
• If your Texas employer had no comp, is the claim against the employer or a third party?
• What will I owe at 12, 24 and 36 months?

The full section starts at our lawsuit cash advance guide.

Common questions

Related pages

Cash advance on a lawsuit · Laws by state · Injury law FAQs

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.