Legal Question in Construction Law in California

Hiring uninsured labor

I am a home owner. I am considering hiring a tree trimmer who does not have insurance. He is willing to sign a waiver holding me not responsible if he or his helper is injured on the job. If he signs the waiver is this a legal document? And will I not be held responsible if he is injured

Asked on 4/10/09, 5:44 pm

3 Answers from Attorneys

Gary Redenbacher Redenbacher & Brown, LLP

Re: Hiring uninsured labor

You didn't say what kind of insurance the tree trimmer doesn't have. For the sake of this discussion, I'm assuming he doesn't have any insurance of any kind.

Do you have homeowner's insurance? If you do, which is highly likely, every homeowners insurance policy in the state of California includes a small worker's compensation component. That component is meant to cover anyone you hire to help with household maintenance and tree trimming should qualify. So, if either of these two are injured during the work, you should be able to make a claim and have it covered.

Meanwhile, if the tree trimmer is licensed, you will not be responsible for his injuries. You are supposed to possess a license if you are trimming trees above a certain height, which I don't remember offhand (perhaps 15 feet??). The helper is another story. The tree trimmer must have workers compensation insurance by law, but if he doesn't, you might be covered under your homeowner's policy if the helper is injured.

To finally get to your question as to whether the waiver would be legal: Probably not. There is no way it would be legal for the helper. Since a waiver must be knowing and completely voluntary, a third party usually can't waive for another. Beyond this, there is a very strong public policy in California that there must always be some form of compensation for workers who are injured. Without doing research, my guess is that the courts would strike the waiver as against public policy.

Your best insurance to avoid problems is to hire a licensed contractor who has worker's compensation insurance. If a person isn't licensed or doesn't have worker's compensation insurance, it is a huge red flag that they don't have the skills to do the work you've hired them for. In my experience, unlicensed contractors cause way, way more problems in proportion to licensed contractors.

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Answered on 4/10/09, 6:39 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Hiring uninsured labor

There is, in addition to the possibility of being sued and losing, the possibility of being sued and winning after paying tens of thousands of dollars of defense fees and costs out of your own pocket. This is why insurance is so vital - the insurance company generally has the duty to defend. Before hiring an uninsured person, especially one who will use employees, I'd have a consultation with your homeowners' insurance agent to discuss gaps in coverage. Unless someone will cover you, and assume the defense of claims, don't do it. Also, waivers are too likely to be unenforceable for one reason or another; I wouldn't rely on one, especially if home-prepared.

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Answered on 4/11/09, 1:08 am
Terry A. Nelson Nelson & Lawless

Re: Hiring uninsured labor

Dream on. Do you really think you won't get sued if someone gets hurt, just because of a piece of self crafted 'legalese'? Make sure there is insurance, homeowners generally has Workers Comp coverage built in. Call you insurance agent.

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Answered on 4/13/09, 3:36 pm

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