by George Markos –
This is a short introduction with respect to Homeowner Cases and issues that may help the attorneys in your office.
Any time a gardener, landscaper, day helper or a maid files a claim for injury, the question that will need to be addressed first by the defendant or their attorney is: does this claim fall under Workers’ Compensation coverage, or does the homeowner policy cover this scenario?
In determining those issues, it is important that you consider these steps, Labor Code (Labor Code hereinafter “LC”) provisions, and points of law:
STEP ONE: Determine the applicant’s status as an employee or independent contractor.
Labor Code § 3357: There is a presumption of employment unless independent contractor or other exclusion applies (i.e.: LC § 3351(d)).
LC § 3357: Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.
LC § 3351(d), definition of a “residential employee”:
(d) Except as provided in subdivision (h) of section 3352, 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, including the care and supervision of children, or whose duties are personal and not in the course of the trade.
LC § 3352 (h), Requirement to qualify as “residential employee”:
To qualify as a residential employee, the worker must meet the minimum criteria of working at least 52 hours and earned at least $100.00 in the 90-day calendar leading up to and including the date of the injury.
LC § 3352 “Employee” excludes the following:
(h) Any person defined in subdivision (d) of Section 3351 who was employed by the employer to be held liable for less than 52 hours during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury for injuries, as defined in Section 5412, or who earned less than one hundred dollars ($100) in wages from the employer during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury for injuries, as defined in Section 5412.
Independent Contractor: See L.C. § 2705.5, 3353 & 3357
2750.5: 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. Proof of independent contractor status includes satisfactory proof of these factors:
(a) That the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.
(b) That the individual is customarily engaged in an independently established business.
(c) That the individual’s independent contractor status is bona fide and not a subterfuge to avoid employee status. A bona fide independent contractor status is further evidenced by the presence of cumulative factors such as substantial investment other than personal services in the business, holding out to be in business for oneself, bargaining for a contract to complete a specific project for compensation by project rather than by time, control over the time and place the work is performed, supplying the tools or instrumentalities used in the work other than tools and instrumentalities normally and customarily provided by employees, hiring employees, performing work that is not ordinarily in the course of the principal’s work, performing work that requires a particular skill, holding a license pursuant to the Business and Professions Code, the intent by the parties that the work relationship is of an independent contractor status, or that the relationship is not severable or terminable at will by the principal but gives rise to an action for breach of contract…
Potential Actual Employers: Temporary Agencies and General Contractors
Business Involvement: Watch for L.C. § 3351 (D) Exclusion (Is the employee actually working for a home-based business?)
Insurance Code § 11590: If there is any doubt about coverage in the homeowner policy read refer to this section which provides the following:
Except as provided in Section 11591, no policy providing comprehensive personal liability insurance may be issued or renewed in this state on or after January 1, 1977, unless it contains a provision for coverage against liability for the payment of compensation, as defined in Section 3207 of the Labor Code, to any person defined as an employee by subdivision (d) of Section 3351 of the Labor Code. Any such policy in effect on or after January 1, 1977, whether or not actually containing such provisions, shall be construed as if such provisions were embodied therein. However, such coverage shall not apply if any other existing, valid and collectible, workers’ compensation insurance for such liability is applicable to the injury or death of such employee
STEP TWO: Determine what the wages are for the applicant
How are earnings calculated?
What are the wages?
- Did you include Room and Board as part of the wage?
Concurrent Jobs: Common Issues
- This increases average weekly wages.
- Potential wage loss
- Are they living at home?
STEP THREE: Have you considered joining the Uninsured Employers’ Fund as a potential defendant?
If the applicant is not a residential employee, consider joining the Uninsured Employers’ Fund (UEF) as a party defendant.
Joinder of UEF must be precise. Use appropriate forms (i.e.: Special Notice of Lawsuit with Proof of Service upon defendant) and then file a DOR. Please note to coordinate with the UEF calendar to determine when they will be present at the W.C.A.B. you selected as venue. Otherwise, UEF will not be present at the hearing. Personal Service should be used in these circumstances to avoid delays.
Also, please note the original Proof of Service must be filed with the W.C.A.B. When the WCJ hearing the matter is satisfied that the employer has made a general appearance or has been correctly identified and properly served, the WCJ will issue an Order Joining UEF.
STEP FOUR: Do you need to retain Cumis Counsel?
Carriers and Homeowners will be at odds and conflict, so it is important you advise your client to retain cumis counsel. The carrier will ultimately pay these fees, though the Homeowner may initially retain and pay for the attorney.
Other issues of Civil Liability against the Homeowner:
When should general liability be considered?
What if there is substantial negligence by a homeowner? If so, and if the applicant does not meet the 52-hour and earning criteria, the homeowner may be subject to civil liability. In the long run, it may be more appropriate for the homeowner to have the applicant be considered an employee, rather than have the employee sue the homeowner in civil court.
It is my hope that this roadmap allows you to make some initial determinations when individuals are injured in your home but by no means is this a complete guideline on how to approach these cases or intended as legal advice.
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