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Horvitz & Levy persuaded the Court of Appeal to issue a published opinion that clarifies the proper interpretation of recent amendments to Labor Code provisions that govern homeowner liability for injuries to residential employees.

A homeowner hired a worker for a home improvement project. The parties agreed that the work would take 10-12 days, eight hours each day. The worker fell off a ladder and got injured before completing the job. When the worker sued the homeowner for negligence, the homeowner moved for summary judgment on the ground that the worker’s injuries were exclusively covered by workers’ compensation. The worker argued that he was excluded from workers’ compensation under Labor Code section 3352, subdivision (a)(8)(A), which provides that residential workers are excluded from workers’ compensation coverage if their employment “was, or was contracted to be, for less than 52 hours.” The trial court granted the motion for summary judgment, ruling that the exclusion did not apply because, even though the injury occurred before 52 hours of work, the parties had contracted for a job exceeding 52 hours. Accordingly, the worker’s exclusive remedy is to seek workers’ compensation benefits and he is barred from pursuing a tort claim. The worker appealed.

Horvitz & Levy represented the homeowner on appeal. We argued that the trial court’s interpretation of the statute was correct because the Legislature, when it amended the statute to add the “or was contracted to be” language, could not have intended to create a situation in which the application of workers’ compensation turns on the fortuity of how many hours an employee has worked at the time of injury. When originally enacted, the residential-employee exclusion was intended to exclude only short-term workers from coverage. Thus, the Legislature’s recent amendment must have intended that, if the parties have agreed that the project will exceed 52 hours, that project is not the sort of short-term project that is excluded from coverage, and that remains true regardless of whether the injury occurs before or after the 52-hour threshold. The Court of Appeal issued a unanimous published opinion adopting our argument and explaining that while the word “or” is typically used to express a disjunctive, it can also be used as an explanatory phrase, especially when set off by punctuation. That must be the usage that the Legislature intended here because that is the only interpretation consistent with public policy and the purposes of the workers’ compensation laws. The Court of Appeal also rejected the worker’s various other challenges to the trial court’s summary judgment order.