30 Defense Comment Summer 2019 Substantive Law Sections – continued from page 29 CONSTRUCTION Jill J. Lifter | Co-Chair Wakako Uritani | Co-Chair The construction substantive law group thanks all its members who attended the Annual Construction Seminar at the Walnut Creek Marriott on May 3rd. By all accounts, it was an excellent event featuring three distinct panels addressing arbitration, defense of HOA claims, and coverage issues that can create problems for unwary defense counsel. If you were unable to attend in person, we invite you to purchase the webinar from the ADC website to find out what you missed and obtain 3.5 hours of CLE credit, including 1.25 hours of ethics credit, while you’re at it. Bob Sims spearheaded our efforts in preparing and submitting a response to the invitation to comment on proposed jury instructions addressing the Right to Repair Act [proposed CACI instruction numbers4570,4573,and4574]extendedby the Judicial Council’s Advisory Committee on Civil Jury Instructions. We are waiting to see what impact our comments will have. In addition, for those who defend construction site accident cases, we want to bring a recent case to your attention: Strouse v. Webcor Construction, L.P., 2019 Cal. App. LEXIS 377, which involved a bodily injury claim by a subcontractor’s employee against the general contractor arising out of the general contractor’s alleged negligence. The trial court instructed the jury on negligent exercise of retained control pursuant to CACI 1009B and on negligence per se based upon Cal- OSHA regulations. The jury found the general contractor one hundred percent liable for the subcontractor’s employee’s injuries. The trial court entered judgment accordinglyandawardedthesubcontractor its attorney’s fees as the prevailing party under the contract. The general contractor appealed, contending that CACI 1009B did not accurately state the holding of Hooker v. Department of Transportation (2002) 27 Cal.4th 198, that the negligence per se instruction was improper, and that the court erred in granting the subcontractor’s motion for attorney’s fees. The court disagreed and affirmed the judgment. The opinion includes an instructive discussion of the “Privette doctrine” set forth in Privette v. Superior Court (1993) 5 Ca.4th 689 and its progeny (including Hooker). In light of the “affirmative contribution” requirement to impose liability on the hirer of the independent contractor for injuries to one of its employees, the general contractor asserted that CACI 1009B wrongly equates “substantial factor” [CACI 430] with “affirmative contribution” notwithstanding that they are distinct concepts. The court side-stepped this issue, holding that the jury’s finding that the general contractor was one hundred percent at fault necessarily established that its fault wasnot“vicariousorderivativeinthesense that it derives from the ‘act or omission’ of the hired contractor” [citation omitted]. The court further held that giving the negligence per se instruction [CACI 418] with a Cal-OSHA provision was not error because it was not necessarily used to establish a duty of care and was admissible to establish the hirer’s standard of care in light of the evidence that the hirer had not delegated compliance to the subcontractor. The portion of the opinion affirming the award of attorney’s fees was not certified for publication. Please bring any recently published cases or new legislation that affects our practice to our attention, particularly by preparing a proposed Newsflash for publication to our members. EMPLOYMENT Laura McHugh | Chair aura McHugh of Duggan Law Corporation, in Sacramento, was recentlyappointedchairoftheEmployment Substantive Law Group. Welcome Laura! Please join the Employment Law Committee. Laura can be contacted at laura@duggan-law.com. INSURANCE Sean Moriarty | Chair enate Bill 534 aims to promote California’s women, minority, LGBT, veteran, and disabled veteran-owned businesses. The bill encourages the $310 billion insurance industry to use its buying power to benefit diverse small businesses. SB 534 extends innovative programs that bring increased transparency and opportunities for partnership between the nation’s largest insurance market and women, minority, LGBT, veteran, and disabled veteran-owned businesses. SB 534 will reauthorize the Insurance Supplier Diversity Survey, which expired in January 2019, and expand it to include LGBT and veteran-owned businesses. SB 534 was approved by the California Senate Insurance Committee on April 10. It goes next to the Senate Judiciary Committee. The bill must be approved by the full Senate and Assembly and signed by the Governor before it would take effect. CA Insurance Law Update: Insurance Company of the State of Pennsylvania v. American Safety Indemnity Company (2019) 32 Cal.App.5th 898. Afteradeveloperobtainedanapproximately $1.5 million default judgment against a subcontractor, the developer’s excess liability insurer prevailed in a judgment creditor action against the subcontractor’s general liability insurer. New Millennium Homes LLC (NMH) was the developer of a housing development.  NMH hired Camarillo Engineering, Inc. (Camarillo) to perform mass grading, compacting and finish grading at the development. The subcontract gave NMH indemnity rights against Camarillo for claims of property damage “arising out of or resulting from the activities of” Camarillo. Homeowners Moghadams began to notice cracks in their house and complained to NMH. A geotechnical engineer concluded that the distress to the Moghadam residence was dueinparttodifferentialsettlementcaused by improper soil compaction and the arbitrator agreed. The arbitrator awarded Continued on page 31