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Re: [infoguys-list] Employee of Independent Contractor Cannot Sue Company Tha...

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  • Ron DeCaro
    Perhaps a bit of clarification would be helpful in this case because the title given to the news piece is a little misleading. As we all know, the California
    Message 1 of 2 , Oct 6, 2011
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      Perhaps a bit of clarification would be helpful in this case because the title given to the news piece is a little misleading.


      As we all know, the California workers' compensation program constitutes the "exclusive remedy" for any and all bona fide employees who are injured on the job. Up to the early 90's, some progressive type of courts had been slowly undermining this concept by allowing employees of subcontractors to take another shot at the parties that employed the subcontractor they worked for, in the form of tort actions. They were trying to use an expansion of a legal doctrine known as "peculiar risk" to get the person hiring the subcontractor involved.


      In Privette v. Superior Court the Supreme Court put a stop to this practice, ruling that a non-negligent party such as the person hiring the sub-contractor had no liability for the injuries sustained by the employees of his subcontractor and re-established the "exclusive remedy" principle.


      Enter US Airways. The claimant (and the workers compensation carrier involved) were suing the airline on the basis that they had in fact exhibited negligence in failing to comply with some Cal/OSHA safety regulations and thus should not be covered by Privette. The Supreme Court disagreed and ruled that any tort law duty to comply with Cal/OSHA regulations for the benefit of an independent contractor’s employees is delegable to that contractor.


      Hope this helps.










      Ronald R. DeCaro
      California License No. PI21993

      INTEGRATED INSURANCE INVESTIGATIONS
      PO Box 888
      Mira Loma, CA 91752-0888








      -----Original Message-----
      From: suesarkis <suesarkis@...>
      To: infoguys-list <infoguys-list@yahoogroups.com>; Freekali <Freekali@yahoogroups.com>
      Sent: Thu, Oct 6, 2011 10:13 am
      Subject: Re: [infoguys-list] Employee of Independent Contractor Cannot Sue Company Tha...






      Ron -

      I find it amazing that the Supreme Court said NO when, in fact, most other
      cases have said YES. However, it would appear that a TORT is not
      available but a Worker's Comp claim is. One such case I can remember off the top
      of my head was the case of - Heiman v. Workers' Compensation Appeals Board
      (2007) 149 Cal.App.4th 724.

      In that case a property manager for a HOA hired an unlicensed contractor
      who had employees. One was permanently injured for life. The court held
      the property manager and the unlicensed contractor liable along with the HOA.
      However, the individual condo owners were exempt as they did not do any
      hiring, etc., etc.

      Labor Code section 2750.5 states in part:
      There is a rebuttable presumption affecting the burden of proof that a
      worker performing services for which a license is required pursuant to Chapter
      9 (commencing with Section 7000) of Division 3 of the Business and
      Professions Code, or who is performing such services for a person who is required
      to obtain such a license is an employee rather than an independent
      contractor.

      In Heiman, the court ruled that Pegasus (property manager) was the joint
      employer of Aguilera under section 2750.5 since Pegasus hired Hruby, an
      unlicensed contractor, as expressly found by the WCJ and WCAB. In addition,
      all the defendants may have liability as employers under section 3715(b) becau
      se Aguilera's labor cost in excess of $100.

      The court also added that "homeowners' association may also be held liable
      as a joint employer of the unlicensed contractor under Labor Code section
      2750.5." The Association is not an exempt employer under sections 3351(d)
      and 3352(h) because it was not an owner and "homeowner associations are
      separate and independent legal entities from the unit owners." Even if the
      Association was an owner, the WCAB reasons, "the unlicensed contractor's work
      for the homeowners' association was not "personal" because it was in the
      course of the association's trade or business, management of the common areas
      of the condominium complex."

      The law can be quite confusing and opposing at times. What you cannot get
      in one court, you can get in another.

      Sue

      In a message dated 10/6/2011 12:35:01 P.M. Pacific Daylight Time,
      Roncaro@... writes:

      This might be of interest to those of you who hire independent contractors
      and their employees.
      Employee of Independent Contractor Cannot Sue Company That Hired
      Contractor for Negligence
      Posted on September 1, 2011 by Anthony Oncidi

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      SeaBright Ins. Co. v. US Airways, Inc., 2011 WL 3655109 (Cal. S. Ct. 2011)
      US Airways uses a conveyor to move luggage at San Francisco International
      Airport. US Airways hired independent contractor Lloyd W. Aubry Co. to
      maintain and repair the conveyor and did not direct Aubry's employees in their
      work. The conveyor lacked certain safety guards in violation of various
      Cal-OSHA regulations. After one of Aubry's employees, Anthony Verdon Lujan,
      was injured while inspecting the conveyor, the employee and Aubry's workers'
      compensation carrier (SeaBright) sued US Airways. US Airways filed a
      summary judgment motion based on Privette v. Superior Court, 5 Cal. 4th 689
      (1993), in which the California Supreme Court held that an employee of an
      independent contractor is generally precluded from suing the party that hired the
      contractor. The question in this case was whether thePrivette rule applies
      when the party that hired the contractor failed to comply with workplace
      safety requirements. The Supreme Court held the Privette rule does apply in
      such circumstanc es and ordered that summary judgment be granted in favor
      of US Airways.

      Ronald R. DeCaro
      California License No. PI21993

      INTEGRATED INSURANCE INVESTIGATIONS
      PO Box 888
      Mira Loma, CA 91752-0888

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