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Felder and Granata Obtain Order Dismissing Transportation Broker Under “Control Test”

July 6, 2020

Otis Felder (Of Counsel-Los Angeles) and Valeria Granata (Associate-Los Angeles) prevailed on a summary judgment motion in the San Bernardino Superior Court, arguing that a medical transport company and its driver were independent contractors of the firm’s client, a non-emergency medical transportation services broker. The plaintiff’s workers’ compensation carrier contracted with the broker to transport the plaintiff to a medical exam, and then he alleged it employed the medical transport company and its driver so they would be vicariously liable following an auto collision involving the driver. The plaintiff sought recovery of the medical and workers’ compensation benefits provided following the accident in excess of $1.6 million. In dismissing the broker, the Court considered whether to apply the ABC Test recently established by the California Supreme Court, under which a worker is presumed to be an employee under the Labor Code, with three exceptions, as opposed to the Control Test, which instead considers whether the presumed employer has the right to control the manner and means of accomplishing the result desired, including additional secondary factors. The plaintiff argued that there were triable issues of fact that either the driver and/or the transportation company were employees of the broker under the ABC Test. The Superior Court agreed with Otis and Valeria’s argument, finding that the  earlier Control Test decision applied as it pertained to a non-wage claim. The Court found that there was no dispute of law or facts that the broker did not control the driver and, therefore, granted summary judgment dismissing the broker in this multimillion-dollar lawsuit.

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