Moehring

While maintaining fire roads in the Klamath National Forest, Mark Titus was struck and killed by machinery being operated by Mark Thomas (defendant). Titus and defendant, doing business as Mark Thomas Logging, had been employed by a contractor awarded the job of maintaining the fire roads. After Titus’s heirs and family (plaintiffs) recovered workers’ compensation benefits, they sued defendant for negligently causing Titus’s death. The trial court entered summary judgment in defendant’s favor, ruling that he was a fellow employee and, therefore, workers’ compensation was the exclusive remedy.

On appeal, plaintiffs correctly contend the trial court erred in concluding defendant, who did not have a contractor’s license, was an employee as a matter of law pursuant to Labor Code section 2750.5. Among other things, this statute (1) creates a rebuttable presumption that “a worker performing services for which a [contractors’] license is required” is “an employee rather than an independent contractor” (Lab. Code, § 2750.5), and (2) provides that. a worker performing any activity for which such a license is required “shall hold a valid contractors’ license as a condition of…