Department of Industrial Relations v. Workers' Comp. Appeals Bd.

• Decision Date: 14 June 1979
• Parties: STATE of California, DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF INDUSTRIAL ACCIDENTS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Jeremy Shannon (Harrison) Tessler et al., Respondents. Civ. 45458.
• Court: California Court of Appeals Court of Appeals

Page 183

156 Cal.Rptr. 183

94 Cal.App.3d 72

STATE of California, DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF INDUSTRIAL ACCIDENTS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Jeremy Shannon (Harrison) Tessler et al., Respondents.

Civ. 45458.

Court of Appeal, First District, Division 1, California.

June 14, 1979.

Hearing Denied Aug. 8, 1979.

Evelle J. Younger, George Deukmejian, Attys. Gen., Robert L. Bergman, Asst. Atty. Gen., B. Franklin Walker, Deputy Atty. Gen., San Francisco, for petitioner.

Richard W. Younkin, Secretary and Acting Deputy Com'r, Workers' Compensation Appeals Bd., San Francisco, for respondent Workers' Compensation Appeals Bd.

Dewar, Romig & Anton, Harold J. Romig, Jr., Monterey, for respondent Tessler.

Vonk, Jakob, Hershenson & Evans, Frank C. Evans, San Francisco, for respondent State Compensation Ins. Fund.

ELKINGTON, Associate Justice.

Gary Allen Bradburn died as a proximate result of an industrial injury. Jeremy Shannon (Harrison) Tessler (hereafter for convenience, Jeremy) entered into a "Compromise and Release" with Bradburn's employer and its insurance carrier under which, as a partial dependent of the deceased worker, she would be paid a lump sum benefit of $10,000. When the parties sought its approval of their agreement, the Workers' Compensation Appeals Board (Board) ordered that the State of California's Department of Industrial Relations (State) be joined as a party to the proceedings. (See Lab.Code, § 4706.5, quoted in relevant part, p. 8, Infra.)

The Board, sitting en banc, thereafter found as here relevant, that Jeremy was a partial dependent of the deceased worker, and that the "State of California is (not) entitled to payment of a death benefit pursuant to Labor Code Section 4706.5(a)." It then "affirmed and adopted" the "Compromise and Release," and ordered "that the State of California take nothing by way of (its) claim."

On the State's petition we review the Board's award and order.

The State with reasonable accuracy relates the material facts before the Board as follows:

"On December 3, 1974, the deceased employee herein, Gary Allen Bradburn, was involved in an aircraft collision resulting in his admittedly industrially caused death. At the time of his death, the decedent was living with one Jeremy S. Tessler, the applicant in the proceeding below, in a house in Carmel, California. Tessler had resided with decedent for approximately three to four months at the time of his death. At the time of the decedent's death Tessler, a resident of Kaleden, British Colombia, was married to one Isrial (sic) Tessler to whom she had been married for five and one-half years. When Tessler moved into the decedent's home she brought with her approximately $1,000 in travelers checks. At that time the decedent had a savings account in the approximate amount of $10,000 and a checking account containing approximately $300. Tessler and decedent changed the decedent's savings account and checking account to an account in both their names. During the three to four month period Tessler and decedent were living together mortgage payments and household expenses were paid from both the savings account and the bank account. Tessler placed $250 out of the $1,000 travelers checks she brought with her in the savings account and at the time of the decedent's death had $200 left of the original $1,000 in travelers checks. The remaining $550 was spent on groceries while the decedent and Tessler lived together, a trip to Yosemite with hotel accommodations, repair of the decedent's car and a trip to Kaleden in November to pack up Tessler's belongings.

"Tessler testified that she and the decedent were living together as husband and wife but not calling themselves husband and wife and not holding themselves out to the community as husband and wife. Tessler further testified that it was understood between the decedent and herself that as soon as it was legally possible they would become husband and wife. Tessler also testified that she did all the normal household chores for the decedent and herself such as cooking and baking bread, making beds and washing. In addition, Tessler testified that she paid the household expenses as well as doing grocery shopping and wrote checks in the joint checking account. Tessler was not employed during the time she lived with the decedent."

Several contentions are placed before us by the respective parties.

The State contends (1) that Jeremy was not a lawful dependent of the deceased worker, and (2) that under Labor Code section 4706.5 it was entitled to the "total dependency death benefit that would be payable to a surviving spouse with no dependent minor children," i. e., $40,000.

Jeremy argues, the Board having found her to have been the deceased worker's only dependent, that she was entitled to the full statutory dependency death benefit award of $40,000.

The employer and its insurance carrier insist (as the Board ruled) that having settled and compromised the claim of the deceased worker's only dependent, Jeremy, they are absolved of further liability to the State, or Jeremy, or anyone.

We first consider the State's contention that Jeremy was not a lawful dependent of the deceased worker.

Labor Code section 3503, as relevant, provides:

"No person is a dependent of any deceased employee unless in good faith a member of the family or Household of the employee, . . ." (Emphasis added.)

There was substantial evidence as found by the Board that Jeremy was, In fact, a member of the deceased worker's Household and his partial dependent. (See Moore S. Corp. v. Industrial Acc. Com. (1921) 185 Cal. 200, 207, 196 P. 257.) The State principally argues that a person in such a relationship as Jeremy bore to the deceased worker may not, as a matter of law, be deemed to have been a "Good faith " member of his household, as required by section 3503.

Labor Code section 3503 and its substantially similar predecessor statutes were long construed by the reviewing courts of California, and by the Board, as providing that a woman knowingly unmarried to, but living with, a worker at the time of his industrially caused death, and thus a party to a "Meretricious relationship," could not be regarded as a dependent of the worker. (See MacArthur v. Industrial Acc. Com. (1934) 220 Cal. 142, 29 P.2d 846; Insurance Co. v. Industrial Acc. Com. (1921) 187 Cal. 469, 202 P. 664; Moore S. Corp. v. Industrial Acc. Com., supra, 185 Cal. 200, 196 P. 257; Brennfleck v. Workmen's Comp. App. Bd. (1970) 3 Cal.App.3d 666, 84 Cal.Rptr. 50; DeFreece v. Industrial Acc. Com. (1938) 26 Cal.App.2d 584, 80 P.2d 129; Industrial Indemnity Co. v. Industrial Acc. Com. (1951) 16 Cal.Comp.Cases 115; Mansfield v. Stockton Box Co. (1943) 8 Cal.Comp.Cases 167; Kendall v. Whiting-Mead Wrecking Co. (1934) 20 I.A.C. 21.) In such situations the parties, by "living together in open and conscious defiance of law," were "not in Good faith because they knew that their relations were unlawful." (Moore S. Corp. v. Industrial Acc. Com., supra, 185 Cal. p. 207, 196 P. p. 260; emphasis added.)

The application of the rule will be well illustrated by the several cases where a woman married to another, and a child of that marriage, in fact became members of a worker's household, and his dependents. Because of the woman's meretricious relationship with the worker she was, as a matter of law, not a "good faith" member of his household and was denied workers' compensation benefits upon his employment-related death. But, it was held, such lack of "good faith" would not be imputed to the child with an otherwise similar factual degree of dependency; he or she was the deceased worker's dependent according to Labor Code section 3503 and its ancestral statutes. (See, e. g., Insurance Co. v. Industrial Acc. Com., supra, 187 Cal. 469, 202 P. 664; Moore S. Corp. v. Industrial Acc. Com., supra, 185 Cal. 200, 196 P. 257.)

The State places its reliance upon the foregoing authority.

However, in 1976 California's Supreme Court decided Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106. Although the factual and legal context of that case differed somewhat from that before us, certain policy considerations there announced must reasonably be deemed applicable here. The court said:

"(W)e believe that the prevalence of nonmarital relationships in modern society and the social acceptance of them, marks this as a time when our courts should by no means apply the doctrine of the unlawful of the so-called meretricious relationship to the instant case. As we have explained, the nonenforceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and...