sections 3600(a) and 3602(a) barred plaintiffs' action against it.
Also by its December 7 Order, the Court denied a motion for summary judgment brought by SDGE. SDGE had asserted that it, along with SCE, was a "joint employer" and thus also entitled to worker's compensation exclusivity. The Court further sua sponte adjudicated that, as a matter of law, SDGE was not a joint employer in this case.
SDGE requested that the Court allow it to file a motion for reconsideration, with further briefing relative to the summary adjudication, asserting that it was unprepared for the possibility that this Court would sua sponte grant summary adjudication against it on the issue of joint employment. The Court granted SDGE's request for reconsideration and for further briefing.
In its motion for reconsideration, SDGE briefed additional legal arguments that it was, in fact, a joint employer. SDGE contends that the right to control a worker's employment is not the critical inquiry in assessing whether or not decedent may be considered to have been an employee of SDGE. SDGE concedes that all the co-owning parties delegated exclusive control over operations at SONGS to SCE, but asserts, inter alia, that this delegation created a principal-agent relationship between SDGE and SCE. According to SDGE, SCE acted on SDGE's behalf when SCE hired, supervised and otherwise controlled workers at SONGS, so that the acts of SCE as agent must be imputed to SDGE as principal. On this basis, SDGE concludes that it must be considered a joint employer together with SCE. Alternative theories of joint employment are also urged and will be analyzed here.
SDGE also raises for the first time an argument that, if it is not a joint employer, then the plaintiffs' action against it must nevertheless be dismissed under the rule announced by Privette v. Superior Court, 5 Cal. 4th 689, 854 P.2d 721 (1993). Privette held that the liability of a party under the "peculiar risk" doctrine does not extend to an employee of an independent contractor, where that party had hired the independent contractor to do inherently dangerous work, and the employee's injury arose out of that peculiar danger. Id. at 702.
The Court hereby defers ruling on SDGE's Privette -based arguments until such time as SDGE brings them in the form of a properly noticed motion. The Court finds that it is inappropriate, on this motion for reconsideration, to "reconsider" a new legal theory and arguments which have not been previously briefed or considered. Accordingly, in this motion the Court will address only SDGE's arguments bearing on whether it qualifies as a "joint employer."
JURISDICTION AND CHOICE OF LAW
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 under the Price-Anderson Amendments, 42 U.S.C. 2210(n)(2). The Court is guided by California state law as providing the substantive rules of decision to the extent that law is not inconsistent with the Price-Anderson Act. 42 U.S.C. 2014(hh) (in public liability actions, "the substantive rules for decision ... shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the [Price-Anderson Act]"); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984) ("in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents"); Lujan v. Regents of Univ. of Cal., 69 F.3d 1511, 1518 (10th Cir. 1995).
The 1987 Operating Agreement
The facts relevant to the instant case are provided by the "Second Amended San Onofre Operating Agreement Among Southern California Edison Company San Diego Gas & Electric Company City of Anaheim and City of Riverside," dated February 1987 [hereafter Operating Agreement].
Under the Operating Agreement, SDGE is a co-owner of SONGS, owning 20% of Units 1, 2 and 3 at SONGS. SCE owns 80% of Unit 1 and 75.05% of Units 2 and 3. The Operating Agreement designates SCE as the "Operating Agent," and as such SCE is responsible for the performance of the operation and maintenance of, and the making of Capital Improvements for, SONGS. Operating Agreement, section 4.24, p. 8; see also section 5.1, p. 18. Sections 5.1 and 5.2 read:
Edison shall be the Operating Agent. The Other Parties hereby appoint the Operating Agent as their agent, and the Operating Agent shall perform as their agent, as principal on its own behalf, the duties and responsibilities provided hereunder to be performed by it.
Section 7, p. 30 also pertains to this motion. Entitled "Operation and Maintenance," it reads:
The Operating Agent shall be responsible for providing all personnel required for the operation and maintenance of, and the making of Capital Improvements for, SONGS. If personnel other than the Operating Agent's employees and contractors are required for special work . . . such personnel may be obtained from employees or contractors of the Other Parties to the extent that qualified personnel are available . . . . Employees or contractors of the Other Parties so assigned shall work under the direction and supervision of Operating Agent personnel in charge of such work. Section 7.1.