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HydroCupcake

California law and Owner/Builder who lied on permit application to avoid expense of WC Insurance

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My good friend(Dave)commited to do the complete construction remodel work for a new friend(Mike)whom he met and immediately wanted to help due to his situation...Dave has been in construction industry for over 30 years, but is no longer a licensed contractor, so offered his services at half price to help out his new friend. The job required permits, and permits required either WC ins. or owner verification that none was needed. He filed the permit claiming he was Owner/Builder and would be doing the work himself. The job has been going on for many months, during which several of Dave's friends have also been hired for work at the house. Mike never changed the permit info to reflect Dave or the other workers as being on the job. Dave worked like a dog for this new friend, 10 hour days,7 days a week since job started...as the major work was about wrapped up, Mike decides he can't afford any helpers for Dave, leaving him to try and complete what's left alone. This was going fine, until the other day, when Dave was trying to get a 14 ft beam up (alone) when the scaffolding colapsed beneath him. He fell 15 ft to the ground with everything falling on top of him. He laid there for an hour before he was able to crawl to the garage for his phone, where he called 911 and me.  Mike has been paying Dave cash every week for his services, yet now that he knows he is injured and in hospital, is avoiding paying wages and avoiding all of our calls. I am certain there IS NO WC Insurance, is a personal injury suit his only remedy? (His left leg bones from just below the knee down to his ankle are SHATTERED.He is in the hospital with giant metal sticking thru his leg awaiting surgery,unable to walk and being told by the surgeon there's a 50% chance he could lose his foot.) This guy is acting like NOTHING happened-like he just turned the page-Dave? Dave who? This CAN'T be legal!!!  Any suggestions? 

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You’re right. There was something illegal here. Dave had been in the construction business for 30 years. He was the supposed expert. He knew what the rules were — that he needed to be licensed to do the job, needed to have workman’s comp insurance for the employees he had, etc., but he chose to ignore those laws when he did this work. In short, Dave appears to have operated this construction job illegally. That’s the first of Dave’s problems.


 


The second of Dave’s problems appears to be that Dave was trying to do something alone that really should have been done by two people. Moreover, I’m going to guess that Dave was the one who erected the scaffolding that collapsed, right? This suggests that if there was any fault in causing the accident, it was Dave’s fault.


 


Mike is only required to carry workman’s comp for Dave if Dave was his employee. If Dave was a self-employed contractor, then it was up to Dave to carry any insurance for this. If Dave was not Mike’s employee, then Mike is liable to Dave only if Mike was somehow negligent and it was Mike’s negligence was the caused Dave’s injuries. But so far nothing you wrote suggests that Mike was at all negligent.


 


Bottom line is that, at least with what you posted so far, it appears Dave is pretty much to blame for his own problems here — he operated illegally and he may have been negligent. Nothing suggests Mike is responsible for this. But certainly Dave may consult a local personal injury attorney to see if he has a decent case to pursue.


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This CAN'T be legal! 

 

I'm unsure which of Dave's criminal acts you're talking about here:  working as a contractor without a license or obtaining the necessary permits under false pretenses.  And yes, both of those things are crimes.  I'm going to guess that Dave may have committed other criminal acts and/or civil wrongs, including not withholding taxes from his employees' wages.

 

 

 

I am certain there IS NO WC Insurance, is a personal injury suit his only remedy? 

 

Other than Dave, who exactly do you think should have carried WC insurance?  A homeowner who hires a contractor to perform work on his/her home is not required to obtain WC insurance for the contractor, and Dave certainly was not Mike's employee here.

 

As far as a personal injury suit, what would make you think there is any basis for Dave to sue Mike?  Nothing in your post suggests that Dave's injuries resulted from any act or omission by Mike.

 

The problem here is that Dave chose to engage in something that he was not licensed to do and apparently wasn't competent to do -- without having appropriate insurance coverage.  That's not something for which only he is responsible.  Sorry.

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<br />I appologize-I am actually the good friend's girlfriend-and was trying to get some idea of what to do to help Dave.I was GUESSINGat details and have been told what info I posted was TOTALLY wrong-Dave is NOT and has never BEEN a licenced contractor. He's just been in the industry for more than half his life,as a workerand foreman on many jobs.<br /><br />Mike's home was set on fire by two men who broke in and murdered<br />his girlfriend of 30 years. (TRUE STORY)<br />(in attempt to get rid of any evidence)<br /><br />Mike's best friend hired Dave to work on a few of his cars-This is how they met-the friend told Mike that Dave has been in<br />construction for many years- Mike hired Dave to work on his car, they hit it off, became close - Mike told Dave his sad story and took Dave to see the home-Dave had an overwhelming desire to helphim.(Mike was renting a place for almost a year after the murder and thought he couldn't afford to do anything with his home afterhe'd paid an Architect for plans to be made and saw what it wouldcost to get the job done) Dave walked thru the house with him, looked at the plans,then offered to help any way he could. Mike asked if he'd 'oversee' the work on the house-as he couldn't afford to hire a 'licensed' contractor and would do most the workhimself. Dave agreed to help in THAT capacity and did so, advising Mike, making sure things were done right and inspectionswould pass. Mike obtained his Owner/Builder permit on his own. Mike asked Dave about friends he had in construction-wanting helpwith the work-Dave introduced Mike to several friends-whom Mike then hired to do various jobs on his home.<br /><br />Apparently, Mike was worried he'd run out of money before house got done and began "laying off" everyone. All the way down to Dave and one other person.(my boyfriend - who only worked a few days more - then quit)<br /><br />That is how Dave ended up doing work and by not wanting to leave his friend hanging, stood by Mike in effort to get the house finished. Only problem there was, Mike wouldn't show up to work. The day Dave got hurt...Mike was suppose to meet Dave and get thebeams up together...he didn't show up.<br /><br />Dave did not put up the scaffolding that collapsed. It had been in use at the job and errected by another worker.<br /><br />This is the way it went - whether or not this changes your opinions about who's at fault - ??<br /><br />I was way off in describing the issue in an attempt to find out what could be done(in a hurry)and was shocked at all three replies to my post!<br /><br />Thank you for your honest opinions, however.<br /><br />

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It doesn't change anything. If Mike wanted to cease working on the house and lay off contractors due to funds, that is totally on him and entirely legal. Why Dave would presume to keep working on the house even after the owner did not show and authorize the work, I have no idea. Either way, Dave was not Mike's employee. Anyone who has been in the business for more than 5 minutes should know better than to use scaffolding he did not put up or test for stability and strength. That is just common sense. Mike is not responsible for work Dave took upon himself to do without insurance.

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There are two critical "facts" here:  (1) Dave was not Mike's employee (at least none of the facts you have posted suggest that he was); and (2) Dave's injuries did not result from any act or omission by Mike.

 

Everything else (including just about everything in your follow up post) is pretty well irrelevant.

 

It is possible that Mike's homeowner's insurance policy will have a component that will pay up to some amount (maybe $5-10k) for the medical bills of any person injuried on the property regardless of fault.  If Mike wants to help Dave out, he should look into this.

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Ok. Please tell me how he IS NOT Mike's employee....Dave didn't know Mike from Adam until his friend introduced them. He did somework on Mike's car. He likes tinkering with cars.

Mike took him to his burnt house.(Maybe just to play on his sympathy?) Mike told Dave of his situation then ASKED Dave to help him with the house. how is that NOT Mike HIRING Dave? Dave has been retired for a few years and was not out actively seeking employment...Mike approached Dave.

Mike created the 'lone worker' situation when he got rid of the other workers, knowing full well Dave would not just walk away.

What were all the other workers? Also not employed by Mike? He hired every one of them and has paid them all in CASH since the beginning. Framers, roofers, sheetrock hangers, mudders, plumbers, electricians...

That,at this point, is my only question needing answered....

HOW ARE DAVE AND THE OTHER 10 OR 12 GUYS WHO MIKE BROUGHT TO WORK ON HIS HOUSE NOT EMPOYEES OF MIKES?

I'm beginning to think Mike PLANNED this accident - as other things are coming to light.

My personal opinion is that Mike should do SOMETHING for Dave... what ever it may be...instead of acting like he doesn't exist andscrambling to hire others to help finish his house.

Thanks again.

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We never said that Mike didn't hire Dave, only that he is not Mike's employee. It is no different than when you call a plumber to unclog a drain or take your car for service. You are paying for work to be done but that does not make the plumber or mechanic your employee. Same with the other contractor who worked on the house. They are just that, independent contractors working temporarily on a project. They are in business for themselves and responsible for paying their own taxes and reporting their income. Mike was not withholding taxes on these guys and was just paying for the jobs they performed. Paying a vendor in cash is entirely legal.

 

No one forced Dave to take the job. The fact that Mike is hiring other contractors to complete the work is normal as I'm not sure why you expect Mike would leave the house unfinished until Dave may be able to come back and finish, assuming he even wants to do so. It might be nice of Mike to do something for his friend, as a friend, like stop by the hospital or send flowers but I have a feeling that isn't what you are referring to here.

 

If Mike purposely sabotaged the job to injure Dave, then you have a different scenario, though it does not make sense that he would do that. What did Mike have to gain by hurting the one person who was working on his house?

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Please tell me how he IS NOT Mike's employee.

 

Reading some of these search results will make it clear:  https://www.google.com/search?hl=en&source=hp&q=difference+between+employee+and+independent+contractor&gbv=2&oq=difference+between+employ&gs_l=heirloom-hp.3.0.0l10.1117.4365.0.5285.25.16.0.9.9.0.172.1349.10j4.14.0....0...1ac.1.34.heirloom-hp..2.23.1431.QsRSzkc2BXk

 

 

 

how is that NOT Mike HIRING Dave?

 

That's a rather pointless question since no one said Mike didn't "hire" Dave.  "ElleMD" made a good point in the immediately prior response.  "HydroCupcake," last time you hired a plumber to come to your house, did you buy workers' compensation insurance coverage?  I'm sure the answer is no.  Since you "hired" the plumber, why didn't you obtain WC insurance?

 

 

 

What were all the other workers? Also not employed by Mike?

 

Presumably, they were independent contractors, just like Dave was.

 

 

 

I'm beginning to think Mike PLANNED this accident - as other things are coming to light.

 

Well...if Dave's injuries resulted from some negligent or intentional act or omission by Mike, then the employee/independent contractor distinction won't matter.

 

 

 

My personal opinion is that Mike should do SOMETHING for Dave... what ever it may be...instead of acting like he doesn't exist andscrambling to hire others to help finish his house.

 

You're certainly entitled to whatever opinion you want to take, but there's no legal obligation based on the facts presented.

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Ok. Please tell me how he IS NOT Mike's employee.

 

Mike hired Dave to do the work, yes. But that fact alone does not tell us whether Dave was an employee or an independent contractor. After all, when you engage a lawyer, a doctor, a plumber, an electrician, an architect, an accountant, etc., you are hiring them to do work for you. But in most cases they are not your employees; they are independent contractors. That is why you don't have to get workman’s comp and pay employment taxes when you see a doctor, consult a lawyer, or have a plumber fix your pipes.

 

Instead, the determination of employee or independent contractor is based largely by examining the degree of control that Mike had over the details of how Dave did his work. When you hire an independent contractor, you typically specify the outcome you want but leave the details of how the contractor achieves that outcome up to him. When you hire an employee, on the other hand, you tend to dictate the details of how and when the work is done. Most construction people you hire to do work on your home are independent contractors -- you hire them to do a particular repair, and leave it to them as the experts to determine how best to do it. You’ve not indicated here anything that suggests this situation was sufficiently different such that Mike exerted the kind of control over Dave’s work such the Dave would be Mike’s employee.

 

 

I'm beginning to think Mike PLANNED this accident - as other things are coming to light.

 

Based on what, exactly? Anything other than the fact that you think Mike ought to pay for Dave’s injuries here? What benefit would Mike get from intentionally causing this accident? And how is Dave, as the construction expert, not responsible for his own safety and how he did the job?

 

 

My personal opinion is that Mike should do SOMETHING for Dave... what ever it may be...instead of acting like he doesn't exist andscrambling to hire others to help finish his house.

 

You are entitled to your opinion. But under the law if Dave is simply a self-employed independent contractor then Mike is only liable for Dave’s injuries here if Mike was at fault for causing the scaffolding to collapse. Dave would have to prove that to the court to win a judgment for the damages. What evidence is there that Mike was to blame for the scaffolding collapsing?

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