ASA: Subcontractors “Cannot Be Strictly Liable” for Installing Materials That Comply with Specifications

November 2015

A California court case will determine whether a construction subcontractor can be held “strictly liable” for installing material on a project that complied with specifications that the subcontractor did not write, and that was approved by the architect.
    
The American Subcontractors Association, the Association of the Wall and Ceiling Industry, and the Roofing Contractors Association of California, in an amicus curiae brief filed on Sept. 25, 2015, in the case of Joel Hernandezcueva versus an ASA/AWCI member wall and ceiling subcontractor, argue that a subcontractor cannot be strictly liable for installing material that complied with specifications.
    
“To impose a burden of strict liability on a subcontractor for installing material that complied with specifications because years later it is identified to have a dangerous component would impose liability on a party who did not specify or approve the material installed,” the organizations wrote. “Further, strict liability on subcontractors would place liability on a party who does not control the risk. It would also broaden liability in construction thereby raising insurance rates to contractors throughout California, which in turn would unnecessarily raise construction costs in a still struggling economic environment. This would place undue burden on the Construction Industry that is unnecessary to protect the public.”
    
The underlying dispute involved litigation by an individual dying of cancer allegedly caused by asbestos in products that the member subcontractor installed in a commercial building project as a drywall subcontractor in the 1970s. The subcontractor purchased the products at issue (drywall, drywall compound, and fireproofing products) to complete its subcontract work on the building. Decades later, from 1992 to 1995, Joel Hernandezcueva was a janitor at the Fluor Daniels Building in Long Beach, Calif. Hernandezcueva’s job duties included cleaning up after improvement work and cleaning areas that contained the asbestos drywall and joint compound the subcontractor had installed in the 1970s. Several years after leaving his job, Hernandezcueva was diagnosed with life-threatening mesothelioma.
    
In 2013, Hernandezcueva and his wife sued numerous defendants, including the subcontractor. The plaintiffs claimed that Hernandezcueva contracted mesothelioma because of his exposure to asbestos in the Flour Daniels Building in the 1990s. They asserted several theories of recovery and sought to impose strict liability on the subcontractor. The subcontractor moved for Judgment of Partial Nonsuit, asking the court to dismiss the plaintiff’s strict liability claims against it. The subcontractor argued that strict liability does not apply to subcontractors. The subcontractor noted that the fire-proofing material was not its own product, it was not a manufacturer of the product, and it was not in the business of selling drywall, fireproofing or other construction products—it had merely purchased and installed the construction materials to complete its subcontract work.
    
The trial court agreed. It held that the subcontractor could not be strictly liable for installing the allegedly defective products at issue. The trial court allowed claims against the subcontractor to proceed only on the question of whether it was negligent when it installed the asbestos-related products. After a 17-day trial, the jury returned a verdict finding that Hernandezcueva suffered exposure to asbestos from products the subcontractor installed in the 1970s, but the subcontractor was not negligent. Shortly after this decision, Hernandezcueva died. Plaintiffs have appealed the decision to the California Court of Appeal, Second Appellate District, Division Four.
    
ASA and the other organizations urged the California Court of Appeal to affirm the trial court ruling holding that the subcontractor could not be strictly liable for installing material approved by the owner’s architect and required by its contract to comply with specifications that it did not write. “The decision of the trial court is in accord with established case law recognizing a clear distinction between a subcontractor, a manufacturer, and those who place a product into distribution,” the organizations wrote. “The equities courts have established through developing the doctrine of strict liability do not favor extending liability to one who installs materials that is (a) required by specifications prepared by others, (b) purchased from others, and (c) merely installed as required by contract.”

ASA and the others warned that if the appeals court reverses the trial court, “it will change long-standing California law and unfairly impose liability on California subcontractors for risks they do not control. This would be a severe inequity not only for [the member subcontractor] but for other future similarly situated subcontractors who call California home and help build this state.”