Daily Blast - April 23, 2019 - Lewis Brisbois Bisgaard & Smith LLP

On April 23, 2019, the First District Court of Appeal issued its decision in Strouse v. Webcor Construction, L.P. (April 23, 2019 A148863) __Cal.App.5^th__, holding that CACI jury instruction No. 1009B properly instructs the jury as to what must be evidentially established in order to impose liability on a hirer of an independent contractor as an exception to the Privetterule. It held that the instruction correctly states the law that in order to impose such liability the jury must find as one element of the hirer’s negligent exercise of its retained control over safety conditions, that its conduct was a “substantial factor” in causing plaintiff’s harm. Webcor, the general contractor which was found 100% at fault, argued that the instruction erroneously set forth the requisite element as articulated in Hooker v. Department of Transportation (2002) 27 Cal.4^th 198. Pursuant to Hooker, Webcor asserted that the jury was instead required to find that the hirer’s conduct “affirmatively contributed” to plaintiff’s injuries in order to overcome the Privette rule, a legal concept distinct from the concept of “substantial factor”. In rejecting Webcor’s argument in this regard, the court essentially equated the “substantial factor” element with the “affirmative contribution” requirement discussed in Hooker, agreeing with the view that the “affirmative contribution” requirement “simply requires causation between the hirer’s conduct and the plaintiff’s injury under the ‘substantial factor’ test.…” Id. At p.12. While the court recognized that courts have differed on the issue, it cited with approval and relied on the decision in Regaldo v. Callaghan (2016) 3 Cal.App.5^th 582 which similarly approved the use of CACI No. 1009B.

The court further upheld the subcontractor’s award of attorney’s fees as the prevailing party on Webcor’s cross-complaint against it. The court rejected Webcor’s argument that based on Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4^th 468, the subcontractor was not entitled to recover those fees that were paid on its behalf by its insurer. It distinguished Bramalea in that the attorney’s fees sought by the cross-complainant in that case were part of its breach of contract damages, whereas the fees awarded the subcontractor against Webcor were costs and based on the subcontractor’s status as the prevailing party. Finally, the court rejected Webcor’s assertion that the subcontractor was not entitled to such an award because it did not expressly seek them as part of the relief it sought in its answer to the cross-complaint.