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Bell v. Greg Agee Construction12/29/2004
CERTIFIED FOR PUBLICATION
Douglas Bell appeals from a summary judgment in favor of general contractor Greg Agee Construction, Inc. and its principal Greg Agee (collectively Agee) on Bell's complaint for personal injuries he sustained after a wall fell on him at his workplace. Agee successfully moved for summary judgment on the ground there was no evidence it affirmatively contributed to Bell's injuries, and therefore Bell's causes of action were barred by Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and other cases adopting its rationale. On appeal, Bell contends the public policy rationales of Privette and its progeny do not apply because his employer was not covered by workers' compensation insurance at the time of his accident. We conclude Bell's employer's uninsured status does not affect Agee's liability (or lack thereof) under Privette, and accordingly affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2002, Bell, an employee of Kincaid Construction Co. (Kincaid), was working at a construction site when a gust of wind caused a framed wall to fall on him, injuring his back. Kincaid was the roofing subcontractor for the project; Agee was the general contractor. Kincaid personnel had failed to properly brace the wall. Kincaid's foreman conceded it was overlooked. At the time of the incident, Kincaid was not carrying workers' compensation insurance.
Bell sued Agee, Kincaid, and Kincaid's principal Jeffrey Kincaid, asserting causes of action for negligence, "special risk" and premises liability. Bell alleged Agee, alone and as a joint venturer with Kincaid, had a contractual and legal duty to exercise reasonable care for the worksite safety of employees, and breached that duty by failing to exercise control over safety conditions at the site and oversee workers' safety. Bell further alleged Agee should have recognized that the work of framing was likely to create a special risk of bodily harm to others unless special precautions were taken. He alleged Agee failed to guard or warn against a dangerous condition at the site. Bell later filed a claim for workers' compensation benefits with California's Uninsured Employers Fund.
Agee moved alternatively for summary judgment and summary adjudication. It argued Bell's negligence and premises liability causes of action were barred under the California Supreme Court's decision in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 (Hooker), because Agee did nothing to affirmatively contribute to Bell's injuries. In connection with the motion, the parties did not dispute that Agee never directed any of the operative details of Kincaid's work, and Agee did not contribute in any way to Bell's injury. Relying on Lopez v. C.G.M. Development (2002) 101 Cal.App.4th 430 (Lopez), Agee argued its liability was not increased or affected by Kincaid's failure to maintain workers' compensation insurance. Agee argued summary adjudication of Bell's remaining causes of action asserting peculiar risk theories was proper under Privette, supra, 5 Cal.4th 689, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland), and Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 (Camargo), which preclude employees from suing the hirer of their employer under various theories of the peculiar risk doctrine.
In a tentative ruling, the superior court granted summary judgment. It ruled Agee demonstrated there was no triable issue of material fact as to Bell's negligence and premises liability causes of action in that Agee did not affirmatively contribute to Bell's injuries. The court agreed Agee's liability was not impacted by Kincaid's failure to hold workers' compensation insurance at th
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