CNA Ins. Co. v. Workers' Comp. Appeals Bd., B100236
| Decision Date | 07 October 1997 |
| Docket Number | No. B100236,B100236 |
| Citation | 58 Cal.App.4th 211,68 Cal.Rptr.2d 115 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 1998 A.M.C. 534, 62 Cal. Comp. Cases 1371, 97 Cal. Daily Op. Serv. 7913, 97 Daily Journal D.A.R. 12,717 CNA INSURANCE COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Navigators Insurance Company et al., Respondents. |
Gaitan, Lenker, Davis & Myers and John E. Lenker, Seattle, WA, for Petitioner.
No appearance for Respondent Workers' Compensation Appeals Board.
Thomas I. Hampton, San Diego, for Respondent Navigators Insurance Company and Long Beach Water Concessions, Inc.
In this petition for review of denial of a petition for reconsideration, we determine that the Workers' Compensation Appeals Board properly ordered an insurer to cover certain payments made to an injured worker.
Long Beach Water Concessions bartender Cella Baker sustained injuries to her person when she proceeded down the gangway of her assigned vessel, Catalina King, and a surge of water from another arriving vessel caused the gangway and the City of Avalon's floating dock to move in different directions and Baker to fall onto the dock. Baker had been disembarking to order supplies, one of her responsibilities as an employee. Evidence indicated Baker spent between 80 and 99 percent of her working hours on board the vessels to which she was assigned.
Baker sought recompense for her injuries in several forums and in the following order: (1) an application for benefits pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA; 33 U.S.C. § 901 et seq.); (2) a civil action in Los Angeles superior court (case No. NC004844) against Long Beach Water Concessions (Employer), the City of Avalon (which had refused her tort claim), and Crowley Marine Services/H.Tourist dba Catalina Cruises, citing both the Jones Act (46 U.S.C.App. § 688) and general maritime law; (3) an application for benefits pursuant to the Jones Act; and (4) an application for benefits pursuant to the California Workers' Compensation Act (Lab.Code, §§ 3200 et seq.).
Employer carried LHWCA and Jones Act insurance through real party in interest Navigators Insurance Company (Navigators) and state workers' compensation insurance through petitioner CNA Continental Casualty (CNA). Settlement negotiations commenced in each forum. Baker's voluntary settlement conference statement in the civil case acknowledged she had applied for benefits in all of the forums and asserted she qualified to receive benefits in each. The document stated Baker was a Jones Act seaman. On April 13, 1994, the Los Angeles Superior court approved a $55,000 "global" settlement, to which both Employer, through Navigators, and the City of Avalon contributed. The settlement agreement does not state that Baker is a Jones Act seaman and does not include a jurisdictional finding. On July 21, 1994, LHWCA personnel approved a $36,235 agreed settlement (33 U.S.C. § 908(i)). 1 The findings included only the following: that Baker had alleged injury, that Navigators insured Employer for LHWCA, that the parties had agreed "on the pertinent issues and desire to settle the claim," that the settlement amount "is commensurate with the claimant's disability," and that the agreement "was not secured under duress." There was no finding of jurisdiction. In each settlement agreement, Employer received credit for payments made. CNA was not a signatory to either agreement.
Baker did not present a proposed settlement agreement to the state workers' compensation judge (WCJ); she did accept certain state workers' compensation benefits.
Navigators requested contribution from CNA. 2 CNA refused. Navigators petitioned On December 20, 1995, the WCJ filed his order and opinion on decision, addressing issues relating to contribution, jurisdiction, and state workers' compensation coverage. The WCJ denied Navigator's request for contribution, holding that no settlement agreement had been presented for approval in the state workers' compensation forum and that Navigators lacked standing because it was not the workers' compensation insurance carrier. (Navigators does not here challenge this ruling.)
the WCJ for relief. CNA opposed the petition, asserting, inter alia, that Baker was a Jones Act seaman.
With respect to the issue of jurisdiction, the opinion on decision states in part: Without further discussion, the WCJ approved state benefits Baker had received that totaled $6,622.08 and ordered CNA to negotiate or litigate the related liens.
CNA petitioned the WCJ for reconsideration. CNA reviewed evidence concerning Baker's employment and asserted she had consistently claimed seaman status for purposes of the Jones Act, arguing that under such circumstances federal maritime law must be her exclusive remedy.
The WCJ denied the petition, noting that CNA had answered Baker's application and raised affirmative defenses thereto, appeared at a mandatory settlement conference where it "admitted injury," appeared at a trial setting conference where it agreed to pay rehabilitation benefits, and successfully petitioned to vacate the minute order memorializing that agreement. The WCJ held that CNA's prior participation waived the jurisdiction issue.
As a second ground, the WCJ held that, although Baker's failure to seek WCAB approval of the "global" settlement reflected she had "abandoned her claim," the lien claimants were entitled to stand in her place. The WCJ characterized the case presented to him as one relating solely to the specific interests of the two insurance companies, noting that Baker had not appeared at the hearing. Thus, the WCJ concluded, "[t]he statement of facts provided by CNA is not binding on lien claimants' rights as no factual issues have been put into play by the Applicant or the lien claimants." The WCJ faulted CNA for failing to notice the lien claimants of the action before the WCAB and of its petition for reconsideration.
As a final ground for denial, the WCJ stated that CNA's petition for reconsideration was unverified.
The WCAB denied reconsideration based upon the report of the WCJ. CNA successfully petitioned this court for a writ of review to determine the lawfulness of the denial of reconsideration.
Preliminarily, we agree that CNA's participation in the state forum did not waive the issue of subject matter jurisdiction. (Code Civ. Proc., § 430.80; Barnick v. Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 379-380, 250 Cal.Rptr. 10; Olmstead v. West (1960) 177 Cal.App.2d 652, 654, 2 Cal.Rptr. 443.)
CNA's basic contention is that the WCAB does not have jurisdiction to award benefits to a worker who "has already been compensated under the Jones Act for alleged injuries arising from the same incident for which State Workers' Compensation is sought." Much of the briefing and argument The United States Supreme Court noted the mutual exclusivity of certain federal workers' compensation recovery schemes in Chandris, Inc. v. Latsis (1995) 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314. The Jones Act provides in pertinent part: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, ..." 3 (46 U.S.C.App. § 688(a), italics added; Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 351, 115 S.Ct. at p. 2180.) The LHWCA provides compensation for injury to a (Id. at p. 355, 115 S.Ct. at p. 2183, italics added.) " '[T]he Jones Act and the LHWCA are mutually exclusive' ... for the very reason that the LHWCA specifically precludes from its provisions any employee who is 'a master or member of a crew of any vessel.' " (Southwest Marine, Inc. v. Gizoni (1991) 502 U.S. 81, 88, 112 S.Ct. 486, 492, 116 L.Ed.2d 405, citations omitted.) " '[M]aster or member of a crew' from the LHWCA is coextensive with the term 'seaman' in the Jones Act." (Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 365, 115 S.Ct. at p. 2188.) "[T]he line is one which Congress has drawn between two mutually exclusive federal systems." (Norton v. Warner Co. (1944) 321 U.S. 565, 569, fn. 3, 64 S.Ct. 747, 750, fn. 3, 88 L.Ed. 931.)
by CNA and Navigators addresses the question of whether Baker is a Jones Act "seaman." For purposes of discussion, we shall assume, but not decide, that Baker did qualify as a seaman under the Jones Act. Even so, as we shall explain, public policy supports Baker's application for benefits in multiple forums, and the circumstances of this case trigger CNA coverage
The Court has also noted that (Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 356, 115 S.Ct. at p. 2184, italics added.) Although some state statutes exclude persons covered under the Jones Act from state workers' compensation benefits (see, e.g., ...
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