The opinion
MOSK, J.
I concur.
I write separately, however, to express my concern about the unfair burden effectively imposed on a class of hirers by Labor Code section 2750.5.
*17 Under the tolerant standard of review to which social and economic legislation is subject (e.g., D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16 [ 112 Cal.Rptr. 786 , 520 P.2d 10 ]), it appears that the Legislature’s dissimilar treatment of two classes of hirers, which is effected through section 2750.5, probably survives scrutiny under the equal protection clause.
A hires C to perform certain services for which a license is required; C is a licensed independent contractor; should C become injured in the undertaking, A may avoid workers’ compensation liability through the defense of independent contractor. B, by contrast, hires D to perform the same kind of services; D is not licensed; should D become injured in the undertaking, B may not similarly avoid liability. The dissimilar treatment appears reasonably related to the state’s legitimate goal of imposing the costs of workers’ injuries on hirers, who can presumably better bear or spread them. The Legislature could reasonably believe that the licensed independent contractor could and would insure against the risk of injury, and thus it could reasonably choose to allow the defense of independent contractor in such a case. On the other hand, it could reasonably believe that the unlicensed worker could not or would not insure against the risk, and thus it could reasonably choose not to allow the defense in such a case.
Although this dissimilar treatment appears “reasonable” from a constitutional perspective, it seems unduly harsh as a matter of policy. There is an element of unfairness in denying the defense of independent contractor to hirers solely on the basis that the worker was required to be, but was not, licensed.
The result might be tolerable if the hirers who are thus precluded from asserting the defense were able to insure against the risk of workers’ compensation liability. Such, however, does not seem to be the case. First, such insurance is not available to all who stand in need of it. (See Scott v. Workers’ Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 985 [ 176 Cal.Rptr. 267 ].) Second, there are evidently significant gaps in such insurance as is available. Insurance Code section 11590 requires comprehensive personal liability insurance policies to contain a-provision for compensation insurance for “employees,” as that term is defined in Labor Code section 3351, subdivision (d); that latter section, however, expressly excludes, among others, any person employed for less than 52 hours during the 90 calendar days immediately preceding the date of the injury (id., § 3352, subd. (h)). Thus, policies drawn to incorporate section 11590 effectively fail to provide compensation insurance in the apparently common situation in which work *18 ers are engaged in fairly routine and minor repairs rather than major capital improvements.
Because the unfairness involved in the dissimilar treatment effected by section 2750.5 does not appear to be of constitutional dimension, the remedy must come, if at all, from the hands of the Legislature. Such a remedy may take one of several forms, including, for example, the simple statutory authorization that the hirer may resort to the defense of independent contractor if he was not negligent in the hiring. What form legislation should take is not this court’s responsibility. But I hope that once the Legislature is apprised of the problem, it will take appropriate steps necessary to cure it.
Bird, C. J., concurred.