Lanelle D. Bergen, a property owner, hired KL Construction, Inc., a licensed general building contractor, to build an addition to her home and replace her garage.

Once the owner wrote an initial deposit check, KL Construction’s managing officer Kwok Wong then asked Bergen to write payment checks directly to individual workers, saying this would be easier for him as he would not have to deposit her checks and then write more checks paying workers; Bergen agreed.

KL Construction did not issue W-2 forms or 1099 forms to the workers reporting the income Bergen provided in those checks, did not make payroll deductions for the income, and did not include the income in payroll reports it submitted to its workers’ compensation insurance carrier, State Compensation Insurance Fund.

There is no evidence Bergen was aware of these omissions.

Wong negotiated an oral agreement with a subcontractor, Miguel Gonzalez of Miguel’s Stucco, to perform stucco work. Bergen wrote Gonzalez a check. Gonzalez brought Francisco Carrillo-Torres and two or three other people to help him do the stucco work. Torres slipped off of an improperly constructed scaffold and suffered severe injuries.SCIF agreed to accept the claim Torres subsequently submitted.

Torres filed a complaint against Bergen alleging one cause of action for premises liability and negligence. He contended Bergen was his employer on the home remodel project, but that he did not qualify for workers’ compensation coverage under her homeowner’s insurance policy, because he did not work the required number of hours.

The trial court issued an order granting summary judgment in favor of Bergen. The court of appeal sustained the dismissal in the unpublished case of Carrillo-Torres v. Bergen.

Torres contended that the trial court erred in applying the California Supreme Court’s decision in Privette to conclude Bergen was not liable for his injuries, because Bergen’s and KL Construction’s payroll practices “subverted the federal and state systems for taxation and benefits related to laborers.”

Torres did not explain his own two-year delay in submitting a workers’ compensation claim after he secured the representation of counsel. SCIF agreed to compensate Torres, approved medical treatment for him, and was collecting information to determine the amount of his benefits.

Torres cites no legal authority indicating that a delay defeats workers’ compensation exclusivity or creates an exception to the Privette rule. Case law confirms that the trigger for workers’ compensation exclusivity is a compensable injury.