When an worker’s injuries are caused by a third party and workers’ compensation benefits have been paid pursuant to the California Labor Code one should always be considering the possibility of subrogation of the claim. Subrogation of a claim can be tricky if the employee was an independent contractor injured while performing the work which he was contracted to do.

The general rule for a person who hires an independent contractor to perform work, including a General Contractor, is that they are not liable for injuries suffered by the independent contractor while performing the work they were hired to do. However, there are exceptions to the general rule that would allow subrogation of a claim.

One exception is defined by the case Tverberg v. Fillner Construction, 202 Cal.App.4th 1439. In Tverberg, defendant Fillner Construction was the general contractor on a project to expand fuel-pumping units. Fillner contracted with Lane Supply for the installation of a metal canopy over the fuel pumping units. Lane Supply delegated its duty to Perry Construction Company, and plaintiff Tverberg became the foreperson of a two man crew to complete the work. Alexander Concrete Company was subcontracted by Fillner for the construction of concrete posts in the area of the fuel pumps. As part of their work, Alexander Concrete was instructed to dig eight holes four feet wide and four feet deep in the area where Tverberg was working. The holes were not necessary for Tverberg to complete his work. On several occasions Tverberg requested the lead man for Fillner to cover the holes, but he failed to do so. Tverberg was told that the holes could not be covered because Fillner did not have the necessary equipment to do so.

Based on the evidence, in their opinion on plaintiff’s Motion for Summary Judgment, the Court found that evidence suggested that Fillner could be liable for Tverberg’s injuries because it instructed Alexander Construction Company to dig the holes that were not necessary for completion of Tverberg’s work. The Court also felt the evidence allowed an inference that Fillner affirmatively assumed the responsibility for the safety near the holes and discharged that responsibility in a negligent manner. Finally the court felt that a reasonable jury could infer that Fillner’s suggestion that they did not have the equipment to cover the holes suggested that Fillner agreed to cover the holes but failed to meet that obligation.

Tverberg suggests that if one hires an independent contractor, but retains control over the safety conditions at the jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control. By actively retaining control, a hirer cannot logically make the argument that they delegated authority.

It is not, however, enough to simply retain control over safety conditions at the work site. Rather, liability lies where the hirer’s retained control of the safety conditions were done so in a manner which affirmatively contributed to the injury. Such affirmative contribution can be in the form of actively directing the contractor or employee about the manner of performance of the contracted work. When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury.

It is not the act of failing to provide a safe workplace but rather if the affirmative actions of the hirer in the retained control was negligent so as to contribute to the happening of the incident which caused injury.

Even though a General Contractor or the hirer of an independent contractor generally is not liable for injuries to an independent contractor injured while performing their work, an inquiry into the incident and the general contractor or hirer’s actions needs to be made as there are situations where they may be liable and a subrogation case exists.