Construction Accidents: Independent Contractors

Posted in Construction Accidents on May 15, 2009

Tverberg v. Fillner Construction, Inc. (2008) 168 Cal. App. 4th 1278, 2008 WL 5102860

A man who was injured when he fell into a hole while installing a canopy at a construction site filed an action against the general contractor alleging causes of action and premises liability. The defendant moved for summary judgment based upon Privette v. Superior Court (1993) 5 Cal.4th 689, contending that it owed no duty of care to the plaintiff. In opposition to the motion, the plaintiff argued that he was not an employee of the subcontractor which had hired him, but rather, an independent contractor, and therefore Privette did not apply.

Even though both sides agreed that the plaintiff had been hired as an independent contractor, the trial court granted summary judgment. However, the court of appeal reversed, disagreeing with a contrary decision in Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1093-1096:

“After careful consideration, we find the Tverbergs’ reasoning to be persuasive, for several reasons. First, as we have noted, all of the Privette cases decided by the California Supreme Court involved plaintiffs who were identified as employees or who were said to have been covered by workers’ compensation. None of the plaintiffs in these cases were independent contractors. (See Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 664; McKown v. Wal-Mart Stores, Inc., supra, 27 Cal.4th at p. 223; Hooker v. Department of Transportation, supra, 27 Cal.4th at pp. 202-203; Camargo v. Tjaarda Dairy, supra, 25 Cal.4th at p. 1238; Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th at p. 257; Privette, supra, 5 Cal.4th at p. 692.) This fact distinguishes the Tverbergs’ action from one in which the injured plaintiff was an employee of a hirer’s contractor.

Second, the California Supreme Court decisions all acknowledge that the Privette rule is grounded in the interplay of the workers’ compensation system and the peculiar risk doctrine. A plaintiff entitled to workers’ compensation benefits is limited to that remedy and may not also seek recovery from the hirer of his or her employer, for reasons of public policy.
. . .
when we make our own examination of the public policy reasons cited by Privette and its progeny in support of those decisions, we find that those reasons are inextricably connected to the interplay of the peculiar risk doctrine and the workers’ compensation system.
. . .
These public policy reasons-applicable when the plaintiff is an injured employee-have no force when the injuries are suffered by an independent contractor.
. . .
Our reading of Lopez is one that is consistent with the result for which the Tverbergs argue in their appeal-that only a plaintiff who is entitled to apply for workers’ compensation benefits is barred from bringing a successful action for damages against the hirer of the contractor who in turn hired the plaintiff.

For all these reasons, we conclude that the reasoning of Michael is inconsistent with controlling California Supreme Court authority, and that, as an independent contractor, Jeffrey Tverberg does not fall within the employee class of plaintiffs included within the scope of the Privette line of cases.

Because Jeffrey Tverberg was not an employee of Perry, Privette and its progeny do not apply to bar him from being able to seek recovery from Fillner.”