Marcelo Develasco, Sr., a construction worker, was killed when a concrete column formwork toppled over at a construction worksite. The worker’s surviving family members brought this wrongful death action against general contractor Swinerton Builders and formwork supplier Atlas Construction Supply.
Atlas cross-complained against Swinerton for equitable indemnity, contribution, and declaratory relief.
Swinerton moved for summary judgment as to plaintiffs’ complaint on grounds that the common law Privette doctrine precluded Swinerton from being held liable to plaintiffs. Under the Privette doctrine, the hirer of a contractor generally may not be held liable in tort when the contractor is hired to do inherently dangerous work and an employee of the contractor suffers work-related injuries due to the contractor’s negligence.
The trial court entered summary judgment in favor of Swinerton as to plaintiffs’ wrongful death complaint.
Thereafter, Swinerton – in lieu of seeking entry of judgment on the summary judgment order – settled with plaintiffs. Under the settlement, plaintiffs agreed to dismiss their case against Swinerton and Swinerton waived its costs.
Swinerton then requested, and the trial court granted, a good faith settlement determination under Code of Civil Procedure section 877.6.
Apparently under the shared belief that the good faith settlement determination barred Atlas’s cross-complaint against Swinerton, Atlas and Swinerton stipulated to the dismissal of Atlas’s cross-complaint against Swinerton.
Atlas appealed the summary judgment order in favor of Swinerton, the good faith settlement determination, and the dismissal of Atlas’s cross-complaint.
The Court of Appeal dismissed the appeal to the extent it concerns the summary judgment order. In all other respects, the challenged orders were affirmed in the published case of Atlas Construction Supply v. Swinerton Builders.
Atlas claimed that the trial court erroneously ruled that Atlas lacked standing to oppose Swinerton’s motion for summary judgment and, on that basis, the court did not consider a meritorious opposition brief filed by Atlas. Atlas argues that if the court had considered the opposition brief, it is reasonably likely the court would have denied Swinerton’s motion for summary judgment, plaintiffs and Swinerton never would have settled plaintiffs’ wrongful death complaint, the court never would have made the good faith settlement determination, and Swinerton and Atlas never would have stipulated to the dismissal of Atlas’s cross-complaint.
The Court of Appeal concluded that Atlas was not aggrieved by the trial court’s exoneration of Swinerton in the wrongful death action. Therefore, Atlas lacks standing to appeal the summary judgment order in favor of Swinerton.
As for the good faith settlement determination and the dismissal of Atlas’s cross-complaint, it concluded Atlas waived its challenge to those orders by failing to make substantive legal arguments specific to those orders. Therefore, it dismissed the appeal insofar as it pertains to the summary judgment order and affirmed the remaining challenged orders.