In Mendoza v. Brodeur, (2006 Daily Journal D.A.R. 11,019, 06 Cal. Daily Op. Serv. 7729, Cal.App. 1 Dist., Aug. 18, 2006), a California Court of Appeal addressed the issue of whether an unlicensed injured roofer who did not meet the definition of an employee under workers’ compensation law could bring a tort action against the homeowner who hired him to replace a roof.
The Court of Appeal concluded that, although the roofer was excluded from workers’ compensation coverage, he was not barred from suing in tort because an employment relationship was established between the roofer and homeowner outside workers’ compensation law under Labor Code section 2750.5. This section creates a presumption that an unlicensed worker who is performing services for which a license is required is an employee and not an independent contractor. The Court held that the relationship established under section 2750.5 allows the roofer to maintain a tort action against the homeowner.
Facts
Glenn Brodeur (“Brodeur”) hired Ernesto Mendoza (“Mendoza”) to replace his roof. Brodeur did not provide workers’ compensation insurance. After less than four hours on the job, Mendoza fell from the roof and was injured. Mendoza filed a tort lawsuit against Brodeur to recover for the injuries he sustained. The trial court granted judgment in favor of Brodeur on the ground that Mendoza was not an employee under workers’ compensation law and that he did not come forward with a triable issue of fact for tort liability.
Decision
Insurance Code section 11590 requires that comprehensive personal liability insurance policies must include a provision for any person defined as an employee under Labor Code section 3351(d). Section 3351(d) provides that an employee for the purpose of workers’ compensation is “any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling.” However, section 3352(h) specifically excludes from the definition of an employee any person who was employed less than 52 hours in the 90 days preceding an injury. Labor Code section 3706 provides that a worker who meets the definition of an employee under workers’ compensation law may sue his employer in tort if his employer does not have workers’ compensation insurance.
Labor Code section 2750.5, which is not part of the workers’ compensation law, provides there is a “rebuttable presumption that a worker performing services for which a license is required is an employee and not an independent contractor.” There is a conclusive presumption that a person who employs an unlicensed contractor is an employer.
Mendoza asserted that his exclusion from workers’ compensation coverage under section 3352(h) does not bar him from suing in tort. The Court of Appeal agreed. Although Mendoza was excluded from the definition of an employee under section 3352(h) because he worked for less than 52 hours, Mendoza was unlicensed and “section 2750.5 kicks in and creates an employment relationship.” The Court concluded that the relationship created under section 2750.5 “allows [Mendoza] to maintain an action in tort.”
The Court of Appeal concluded that the trial court erred in granting judgment in favor of Brodeur. The Court sent the case back to the trial court so that Mendoza could proceed in his tort action against Brodeur.
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