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New Cases of Interest - August 16, 2010
Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518. An independent contractor was hired by a subcontractor on a construction project and was injured on the job. He thereafter brought an action against the general contractor. The court entered summary judgment in favor of the general contractor, noting that the bollard hole which the independent contractor had fallen into which was located next to the area where the independent contractor was to do his work, constituted an inherent risk of the work being done by the independent contractor, and did not qualify for the application of the doctrine of peculiar risk. Because of the nature of the independent contractor relationship, the independent contractor had the authority to determine the manner in which inherently dangerous construction work was to be formed, and thereby assumed legal responsibility for carrying out that work, including the taking of any necessary workplace safety precautions. Having assumed that responsibility, the independent contractor could not hold another third party vicariously liable for the injuries sustained.
Zamora v. Lehman (2010) 186 Cal.App.4th 1. A trustee in bankruptcy sued three former officers of a defunct corporation alleging breach of fiduciary duty. The defendants had employment agreements with the corporation which contained an arbitration provision. Two of the three defendants engaged in discovery, while the third attempted to settle the action as to himself only. Four months before trial, the defendants remembered that they had arbitration agreements in their employment contracts, and sought to compel arbitration. The court held that as to the two defendants who had actively engaged in discovery, they had waived their right to arbitration. However, as to the defendant who had attempted to settle, the court found that his activities did not constitute a voluntary or intentional relinquishment of the right to proceed to arbitrate.