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Cedillo v. Workers' Compensation Appeals Board2/14/2003
protect an employer from the consequences of a violation of the law requiring workers' compensation insurance. Under this approach more culpability means less liability. The uninsured employer who has a contractor's license could be sued in state court, but the uninsured employer who also has a no contractor's license could not be sued in state court. Such a holding would do violence to the letter and spirit of laws governing both contractor's licensing and workers' compensation. [ ] Section 2750.5 can create a dual employment relationship whereby a worker may be an employee of both [the hiring party] and [the unlicensed contractor]. [Citation.] The price that must be paid by each employer for immunity from tort liability is the purchase of a workers' compensation policy. (§ 3706.) [The unlicensed contractor] chose not to pay that price, so it should not be immune from liability. [Citation.]" (Id. at p. 1095.) Because Mr. Cedillo was unlicensed, he still could be an employer, section 2750.5 notwithstanding did not preclude it.
This conclusion is further buttressed by Rosas v. Dishong, supra, 67 Cal.App.4th at page 822, which explained that the interaction between section 2750.5 and section 3352, subdivision (h). The Court of Appeal held: "Additionally, the position of section 2750.5 within the statutory scheme indicates the Legislature intended to provide a potential tort remedy to unlicensed workers injured while performing a job for which a license is required. The section is placed in division 3 (§ 2700 et seq.) of the statutes, dealing with the general obligations and liability of an employer to an employee rather than divisions 4 and 4.5 (§ 3200 et seq.) dealing with workers' compensation. Section 2700 provides that the provisions of division 3 shall fully apply to all cases where the provisions of divisions 4 and 4.5 are not applicable. Section 3602, subdivision (c) provides that where the conditions of workers' compensation liability set forth in section 3600 do not concur, the liability of the employer is the same as if division 4 had not been enacted. Section 3600, subdivision (a)(1) conditions workers' compensation coverage on both the employer and the employee being subject to the workers' compensation provisions at the time of the injury . Where a worker is excluded from workers' compensation coverage under section 3352, subdivision (h), the statutory scheme provides for potential liability under division 3, including section 2750.5." (Ibid.) Because Mr. Rodriguez has been excluded under section 3352, subdivision (h), Mr. Cedillo is potentially liable to his employee under tort theories for the injuries to his employee. (Rosas v. Dishong, supra, 67 Cal.App.4th at p. 822; Hernandez v. Chavez Roofing, Inc., supra, 235 Cal.App.3d at p. 1095.) In sum, the board properly determined that for purposes of the workers' compensation law, Mr. Rodriguez was not Mr. Reyes's employee and found that Mr. Rodriguez was Mr. Cedillo's employee.
IV. Disposition
The petition for writ of review is denied. Raul Reyes, Specialty Risk Services, and Jaime Rodriguez shall recover their costs incurred on appeal from the Director of Industrial Relations as administrator of the Uninsured Employers Fund.
We concur:
ARMSTRONG, J.
MOSK, J.
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