Fireman's Fund Indem. Co. v. Industrial Acc. Commission

• Decision Date: 28 April 1964
• Citation: 226 Cal.App.2d 676,38 Cal.Rptr. 336
• Parties: FIREMAN'S FUND INDEMNITY COMPANY and Rose Schuman, an individual dba Solly Schuman Catering Company, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Lillian Turci, Respondents. Civ. 21505.
• Court: California Court of Appeals Court of Appeals

Page 336

38 Cal.Rptr. 336

226 Cal.App.2d 676

FIREMAN'S FUND INDEMNITY COMPANY and Rose Schuman, an individual dba Solly Schuman Catering Company, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Lillian Turci, Respondents.

Civ. 21505.

District Court of Appeal, First District, Division 3, California.

April 28, 1964.

Hearing Denied June 24, 1964.

Hanna & Brophy, San Francisco, for petitioners.

Everett A. Corten, Robert A. Borgen, San Francisco, for Industrial Accident Commission.

DRAPER, Presiding Justice.

Is a compensation carrier entitled to credit for payments made to an injured employee by the employer's liability insurance carrier under the uninsured motorist clause or a medical benefits provision?

The employer's car, driven by employee Lillian Turci in the course and scope of her employment, was struck by an automobile driven by an uninsured motorist. Miss Turci was injured. The employer's car was covered by a public liability policy issued by Continental Casualty Co. That policy included the uninsured motorist coverage required by California law (Ins.Code, § 11580.2). It also contained a 'medical pay' provision covering cost of treatment of injuries sustained by an occupant of the car. Continental paid Miss Turci the policy maximum coverage, $10,000 under the uninsured motorist provision and $2,000 medical payments. Later, she was awarded $11,791.05 by respondent commission, plus repayment for self-procured medical treatment. Her compensation carrier's request for credit for the amounts paid by Continental was denied. This petition followed and we issued writ of review.

An employer is entitled to a credit, against his liability for workmen's compensation, for sums recovered by the employee for the same injury from a third-party tortfeasor (Lab.Code, § 3861). Our first question is whether the payment of $10,000 by Continental, under its uninsured motorist coverage, is to be deemed a recovery by the employee from a third-party tortfeasor. Continental was not the insurer of the tortfeasor who caused the collision. While its policy applied only if he were at fault, it also applied only if he were himself uninsured (Ins.Code, § 11850.2). The uninsured motorist statute is to protect one lawfully using the highway by assuring him of payment of a minimum amount of an award to him for bodily injury caused by the actionable fault of another driver (Taylor v. Preferred Risk Mut. Ins. Co., 225 A.C.A. 114, 37 Cal.Rptr. 63). But this does not make his insurer a surety in the statutory sense of one who agrees to answer for the debt, default or miscarriage of another (Civ.Code, § 2787). The insurer does not stand in the shoes of the uninsured tortfeasor (Commissioners of the State Ins. Fund v. Miller, 4 A.D.2d 481, 166 N.Y.S.2d 777; Horne v. Superior Life Ins. Co., 203 Va. 282, 123 S.E.2d 401). Although in Taylor we used the word 'surety' in one reference to such an insurer, we did so only in the broad sense of describing one who must assure his insured of some recovery for the wrong of an uninsured motorist, without invoking the strict definition of suretyship.

Thus there is nothing in the uninsured motorist statute to indicate that payments under it are to be credited against compensation due an employee. On the contrary, its coverage 'does not apply * * * [i]n any instance where it would inure directly or indirectly to the benefit of any workmen's compensation carrier' (Stats. 1959, c. 817, p. 2836, subsection [c]). We refer...