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MCLANDRICH v. SOUTHERN CALIFORNIA EDISON CO.

February 16, 1996

CHERYL MARIE McLANDRICH, a minor, and PAUL MICHAEL McLANDRICH, a minor, by and through their guardian ad litem, LINDA McLANDRICH, Plaintiffs,
v.
SOUTHERN CALIFORNIA EDISON COMPANY, SAN DIEGO GAS & ELECTRIC, COMBUSTION ENGINEERING, et al., Defendants.



The opinion of the court was delivered by: BREWSTER

ORDER GRANTING SDGE's MOTION FOR RECONSIDERATION, DENYING SDGE's MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY ADJUDICATION IN FAVOR OF PLAINTIFFS

 THE MOTIONS

 On January 22, 1996, the above-captioned case came on regularly for hearing before the Honorable Rudi M. Brewster on the motion of defendant San Diego Gas & Electric [hereafter SDGE] for reconsideration of its previously filed motion for summary judgment and of this Court's sua sponte grant of summary adjudication in favor of plaintiffs that SDGE was not a joint employer of decedent for the purposes of worker's compensation exclusivity. On January 24, 1996, the Court held a supplemental hearing on SDGE's motion. At both hearings, Kenneth Tune, Esq., appeared on behalf of plaintiffs and Ned Isokawa, Esq., appeared on behalf of SDGE.

 After due consideration of the moving and responding papers as well as all relevant evidence and the extensive oral presentations in both hearings, the Court hereby GRANTS SDGE's motion for reconsideration, and on reconsideration, AFFIRMS its prior rulings, DENYING SDGE's motion for summary judgment and GRANTING summary adjudication in favor of plaintiffs that SDGE was not a joint employer of plaintiffs' decedent.

 STATEMENT OF THE CASE

 This is an action for wrongful death, arising out of Gregory McLandrich's alleged exposure to excessive radiation while working at the San Onofre Nuclear Generating Station [SONGS]. SONGS is co-owned by Southern California Edison [hereafter SCE], SDGE, the City of Riverside and the City of Anaheim. Decedent was, at all times material, an SCE employee stationed at SONGS. SCE exclusively operates, maintains and improves SONGS pursuant to a Joint Operating Agreement executed by all the co-owners. Plaintiffs Cheryl and Paul McLandrich, by and through their guardian ad litem, Linda McLandrich, are suing defendants SCE, SDGE, Combustion Engineering and the Institute for Nuclear Power Operations for the wrongful death of their father and husband, Gregory McLandrich.

 By Order dated December 7, 1995, the Court granted summary judgment in favor of SCE, on the grounds that SCE was decedent's employer and that worker's compensation exclusivity, under California Labor Code 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. ยง 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 ...

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