Hernandez v. Chavez Roofing, Inc.

Opinion

GILBERT, J.

— Here we hold that although an employee of an unlicensed and uninsured subcontractor is covered by a general contractor’s workers’ compensation insurance (Lab. Code,

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§ 2750.5), the uninsured subcontractor may be liable in tort for injuries to the employee (§ 3706). We reverse the judgment of the trial court which was entered pursuant to the subcontractor’s motion for summary judgment.

Facts

On January 19,1989, Julian Hernandez was working for Chavez Roofing, Inc., (Chevy), when he was killed by being crushed between a fork lift and a truck owned and operated by Chavez. The accident occurred near a job site

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for which Chavez had a subcontract for roofing. Chavez had neither a current contractor’s license nor workers compensation insurance, but the general contractor, Braun and Associates, did.

Hernandez’s survivors brought a wrongful death action against Chavez and others. The original complaint alleged that Hernandez was an employee of Chavez, but the first amended complaint alleged that Hernandez was an independent contractor. Chavez moved for summary judgment on the ground that, as an employee of Chavez and Braun, Hernandez’s exclusive remedy was in Braun’s workers compensation insurance.

Plaintiffs opposed the motion on the grounds that there is a disputed question of fact whether Hernandez was Chavez’s employee, and that, in any event, an employee is not prevented from bringing a tort action against an uninsured employer.

The trial court granted the motion, and plaintiffs’ appeal the ensuing judgment.

Discussion

Section 3706 provides an exception to the usual rule that worker’s compensation is the exclusive remedy of an employee or his dependents against his employer for injury or death occurring in the course of employment. (§§ 3600, 3602.) Section 3706 provides, “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.”