Bennett v. Unger

• Decision Date: 22 April 1969
• Docket Number: OWENS-CORNING
• Citation: 272 Cal.App.2d 202,77 Cal.Rptr. 326
• Court: California Court of Appeals Court of Appeals
• Parties: Evelyn BENNETT, as Administratrix of the Estate of Arthur E. Bennett, Deceased, Plaintiff and Respondent, v. Charles F. UNGER and C. W. Unger, individually and doing business as Charles F. Unger Construction Company, a partnership; Charles F. Unger Construction Company, a partnership; Luppen & Hawley, Inc., a corporation, et al., Defendants and Respondents. LUPPEN & HAWLEY, INC., a corporation, Cross-Complainant and Respondent, v.FIBERGLAS CORP., the Aetna Casualty & Surety Company, et al., Cross-Defendants and Appellants. AETNA CASUALTY & SURETY COMPANY, a corporation, Plaintiff in Intervention and Appellant, v. Charles F. UNGER and C. W. Unger, individually and doing business as Charles F. Unger Construction Company, a partnership; Charles F. Unger Construction Company, a partnership; Luppen & Hawley, Inc., a corporation; et al., Defendants and Respondents. Civ. 11845.

Page 326

77 Cal.Rptr. 326

272 Cal.App.2d 202

Evelyn BENNETT, as Administratrix of the Estate of Arthur E. Bennett, Deceased, Plaintiff and Respondent, v. Charles F. UNGER and C. W. Unger, individually and doing business as Charles F. Unger Construction Company, a partnership; Charles F. Unger Construction Company, a partnership; Luppen & Hawley, Inc., a corporation, et al., Defendants and Respondents.

LUPPEN & HAWLEY, INC., a corporation, Cross-Complainant and Respondent, v. OWENS-CORNING FIBERGLAS CORP., the Aetna Casualty & Surety Company, et al., Cross-Defendants and Appellants.

AETNA CASUALTY & SURETY COMPANY, a corporation, Plaintiff in Intervention and Appellant, v. Charles F. UNGER and C. W. Unger, individually and doing business as Charles F. Unger Construction Company, a partnership; Charles F. Unger Construction Company, a partnership; Luppen & Hawley, Inc., a corporation; et al., Defendants and Respondents.

Civ. 11845.

Court of Appeal, Third District, California.

April 22, 1969.

As Modified May 12, 1969.

Panattoni Farrell & Gibbert, Sacramento, by Andrew Smolich, for plaintiff-respondent.

Douglas B. McDonald, Sacramento, and Bronson, Bronson & McKinnon, San Francisco, for cross-complainant defendant-respondent.

Hanna & Brophy, by Leon Cronin, Sacramento, for cross defendants-plaintiff in intervention-appellants.

Fitzwilliam, Memering, Stumbos & DeMers, Sacramento, by Paul H. Cyril, San Francisco, for defendants-respondents.

PIERCE, Presiding Justice.

The personal representative of an estate recovered a judgment in an action for the decedent's wrongful death caused by work-induced injuries suffered on a school construction job. Parties to the action were the defendant third party tort-feasors, who were the general contractor and a subcontractor on the job, and the decedent's employer, and its workmen's compensation insurance carrier, who had been brought into the action as cross-defendants by one of the defendants. The action was court-tried. Findings and judgment were in favor of plaintiff and against defendants for damages suffered by the heirs less workmen's compensation benefits paid or payable. The findings and judgment also declared that the employer and its compensation insurance carrier were barred from reimbursement of such workmen's compensation benefits paid because of the concurrent negligence of the employer, Judgment follows the rule of Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641. ¹ Defendant third party tort-feasors did not appeal. Appellants, the employer and the carrier, contend that although the employer was found by the court to be concurrently negligent, the carrier is entitled to circumvent the Witt v. Jackson rule (see fn. 1) and must be given a first lien on the plaintiff's judgment for the carrier's compensation benefits paid. The contention is without merit.

FACTS

Arthur E. Bennett died from injuries received while in the course and scope of his employment. He worked for Owens-Corning Fiberglas Corporation (Owens). Aetna Casualty & Surety Company (Aetna) was Owens' workmen's compensation insurance carrier. It paid the compensation benefits due under the workmen's compensation and insurance laws. (Lab.Code, Div. 4, § 3201 et seq.) Plaintiff, Bennett's wife Evelyn, as personal representative of Bennett's estate, brought a wrongful death action. The action was against the partners comprising the firm Charles F. Unger Construction Company (Unger), also the partnership itself, and Luppen & Hawley, Inc., sued as the alleged tortfeasors responsible for Bennett's death-inducing injuries. These defendants were the general contractor and a subcontractor respectively of a school construction job on which Bennett was working. Owens, his employer, was not an original party to the action. Plaintiff in her complaint had expressly attempted to exclude from her claim for damages the compensation benefits paid or payable. Defendants Unger and Luppen & Hawley answered, denying negligence. Luppen & Hawley, however, also filed a cross-complaint in the nature of an action for declaratory relief, naming Owens and Aetna as cross-defendants. Both cross-defendants appeared in the action, answered the cross-complaint, denying Owens' negligence and Aetna also filed a complaint in intervention against Unger and Luppen & Hawley, praying for a return of the benefits paid and any sums thereafter paid for compensation benefits.

The action was pretried, Doe defendants were dismissed and a pretrial order was made. In it the issues as we have outlined them are set forth. It was stated that the cross-complaint of Luppen & Hawley was 'in the nature of declaratory relief under the theory of Witt v. Jackson.' (See fn. 1.)

Discovery was completed and the case came on for trial. The day before the trial there were out-of-court settlement negotiations involving all parties. On the morning of the trial selection of a jury commenced. On the afternoon of the first trial day, the record shows (by an affidavit filed after trial by the trial attorney for Aetna and Owens) that negotiations between the third party tortfeasors and the carrier had reached the stage where the two were just $1500 apart. (Defendants had already reached agreement with plaintiff as to the figure plaintiff was willing to accept and defendants were willing to pay.) The $1500 difference between Aetna and defendants could not be reconciled. The parties, therefore, returned to court. The following events took place in chambers: The jury was waived by all parties. Defendants made a contingent offer. They offered (1) to pay plaintiff $110,000 and (2) to pay Aetna in addition the amount of its outlay for compensation benefits stipulated to be in the sum of $11,749.95. Both offers, (1) and (2), were expressly made contingent, however, upon the trial progressing on the issue of Owens' concurrent negligence. Counsel stated: 'But, we do not agree to pay Plaintiff anything until the question of the validity of the lien has been adjudicated.' ² Plaintiff was willing to accept the offer and, through her attorney, so expressed herself. Counsel for Owens and Aetna did not accept it. Plaintiff's counsel was placatory. ³

Despite assurances both by the court and counsel to the contrary, Mr. Brown continued to assert that a settlement had already taken place. He again stated that Smith v. Trapp, supra, 249 Cal.App.2d 929, 58 Cal.Rptr. 229, was applicable. Trial was postponed for two days. Before adjournment, however, the court informed counsel that, notwithstanding waiver of a jury, it would release the parties from that waiver and summon a jury if that was their wish. Brown reiterated his contention: 'I claim a lien against that settlement in the amount of compensation payments that have been paid out to date, $11,749.95.' The court advised him to be ready to go ahead on the cross-complaint either before a jury or before the court. Counsel did not avail himself of the offer to recall a jury.

Trial was resumed two days later. There was a stipulation as to the amount of the lien (recovery contingent upon its being found to be collectible). Mr. Brown then reiterated his contention that there had been a settlement and that the constitutional rights of his clients had been prejudiced. He then dismissed the complaint in intervention. His last utterance in the courtroom was: 'With that, your Honor, I have no more--nothing further to say in this case, and I'm going to excuse myself.' Apparently he started to or did walk out. Plaintiff's counsel stated: 'I think he should be called back, your Honor. Can we hold him here?' To this the court replied: 'I don't know any way you can hold him. The only way I could hold him would be to arrest him.'

After Mr. Brown's dramatic departure a short recess was taken. The court was then informed that the firm, Hanna & Brophy, by whom Mr. Brown was employed had been reached by telephone. A member of that firm, Mr. Jensen, had instructed plaintiff's counsel that he was not to represent it in any way. He had stated: '* * * that the proceeding would have to continue as though it was regularly set for trial and that defense counsel did not show up.' 'An affidavit subsequently submitted by plaintiff's counsel, set forth in the Clerk's Transcript, states: 'Mr. Brophy explained that the case would go and be handled as any case that is called for trial where one side fails to appear.'""'

The case then proceeded to trial. Plaintiff's counsel made an opening statement. It detailed the plaintiff's case. Counsel for defendant Unger and defendant Luppen & Hawley each separately then stated that, although no settlement was made, they each conceded negligence and withdrew the defense of contributory negligence. Both then affirmed they were willing to adhere to the offered settlement terms and they were prepared to proceed with the cross-complaint against Owens and Aetna. The trial proceeded: exhibits were introduced, five witnesses testified, a deposition was read and cross-complainant rested.

Thereafter the court filed a memorandum opinion. It pointed out in detail the facts upon which the court had concluded that Owens was concurrently negligent. Findings of fact and conclusions of law were duly prepared. Judgment in favor of plaintiff for $110,000 was entered. Owens was denied a lien.

Lack Of Substance On Appeal

It will be noted that at no time did counsel for Aetna attempt to block a settlement between plaintiff and the admittedly negligent defendants. Instead, he having failed in his own negotiations--by $1500--to reach a settlement with defendants as to the value of Aetna's claim to a lien, thought he had found a way to circumvent Witt v. Jackson, supra, by asserting that a nonexistent settlement had already been unconditionally executed which entitled Aetna to a 100% Recovery ipso facto and without any risk.

The contention is carried over into the seven page brief filed on appeal in which but...