Monday, March 3, 2008

California Homeowner Subject to Suit by Unlicensed Contractor for Injuries Suffered on the Job

By Eric Casher
Thelen Reid Brown Raysman & Steiner LLP
©2008 Reprinted with Permission. All Rights Reserved.

A homeowner hired his neighbor, an unlicensed roofing contractor, to replace the roof on his house. The parties agreed on a set price, and the roofer immediately began work. After only four hours of work, the roofer fell from the roof and was injured.

The roofer filed a personal injury suit against the homeowner for negligence in failing to provide proper safety protection and equipment for the job. The roofer claimed he was an employee of homeowner, and because homeowner did not have worker’s compensation insurance, the roofer was entitled to bring a civil action to recover for damages he sustained from the fall.

In response homeowner argued that: (1) The roofer’s exclusive remedy was worker’s compensation, not a civil action; and (2) The roofer was not eligible for worker’s compensation because he was not an “employee” as defined in the worker’s compensation law (Insurance Code §§3351 and 3352) since he had not worked enough hours to qualify for coverage before being injured.

The roofer countered he was an employee of homeowner based on California law (Insurance Code §2750.5 and cases interpreting it) providing that an unlicensed worker performing services for which a license is required will be considered an employee, not an independent contractor.

Homeowner acknowledged that roofer was an unlicensed contractor but argued that such status did not make the roofer an employee because the license provision does not supersede the definition of “employee” in worker’s compensation law.

Homeowner moved for summary judgment, and the trial court granted the motion.

The Court of Appeal reversed and reinstated the roofer’s negligence suit. Mendoza v. Brodeur, 142 Cal.App.4th 72 (2006). It held that although the roofer was not an employee for purpose of the worker’s compensation law, he was an employee for purposes of tort liability under California law providing that an unlicensed worker performing services for which a license is required is not an independent contractor but an employee. The court concluded that the two bodies of law must be construed together, and that one does not override the other.

In harmonizing the two legal principles, the Court of Appeal affirmed that simply because an unlicensed contractor is not eligible as an employee for worker’s compensation coverage does not preclude the unlicensed contractor from asserting an employment relationship for the purpose of pursuing litigation to recover for injuries sustained on the job. Thus, an unlicensed contractor can sue an employer in tort, and failure to meet the statutory definition of “employee” for purpose of worker’s compensation laws will not impair the unlicensed contractor’s ability to bring suit against his employer for injuries sustained on the job.

For more information about the issues covered in this report, please contact:
Attorney Eric S. Casher
Thelen Reid Brown Raysman & Steiner LLP
101 Second Street, Suite 1800 San Francisco, CA 94105-3606
tel: 415.369.7764 fax: 415.369.8776

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