For a variety of reasons, the recovery professional may wish to craft an argument that will allow continued pursuit the primary target for the work done by the independent contractor. While not every jurisdiction has addressed this issue in the context of installations or deliveries, some have adopted Restatement (Second) of Torts §429. Under this section of the Restatement, you may be able to diffuse the defense that an independent contractor did the work if you are able to show the general contractor failed to disclose the use of independent contractors or subcontractors.
Massachusetts has adopted Section 429 of the Restatement (Second) of Torts. In Harkins v. Colonial Floors, 8 Mass. L. Rptr. 127, 1998 WL 22075, * 8, No. CIV A 96 910 (Mass. Super. Ct. 1998), the court set forth a roadmap for how to defeat the defense of the independent contractor doctrine in a repair, installation or delivery setting.
When faced with the independent contractor doctrine in a setting that involves installation or delivery, recovery professionals should examine Section 429 of the Restatement to see whether it may apply in your state.