Fireman's Fund Indem. Co. v. State Indus. Acc. Commission

• Decision Date: 18 November 1952
• Citation: 250 P.2d 148,39 Cal.2d 831
• Court: California Supreme Court
• Parties: FIREMAN'S FUND INDEMNITY CO. v. STATE INDUSTRIAL ACC. COMMISSION et al. S. F. 18615.

Page 148

250 P.2d 148

39 Cal.2d 831

FIREMAN'S FUND INDEMNITY CO. v. STATE INDUSTRIAL ACC. COMMISSION et al.

S. F. 18615.

Supreme Court of California, in Bank.

Nov. 18, 1952.

Rehearing Denied Dec. 15, 1952.

Keith, Creede & Sedgwick and Frank J. Creede, San Francisco, for petitioner.

Edmund J. Thomas, Jr., T. A. Groezinger, Leonard, Hanna & Brophy and Edmund D. Leonard, San Francisco, for respondents.

SPENCE, Justice.

Petitioner seeks the annulment of an award of the Industrial Accident Commission holding petitioner jointly and severally liable with another insurance carrier for the disabilities suffered by an employee at a time when petitioner had ceased to be the insurance carrier.

Frank C. Gregory, aged 65 years, was employed as Port Manager by the Waterfront Employers' Association. On February 9, 1949, he suffered a cerebral vascular accident (stroke) which resulted in a partial paralysis of his right side. One day less than a year later, on February 8, 1950, he applied to the respondent commission for compensation. The evidence showed that for a period of 65 days, from December 5, 1948, to the date of the stroke, Gregory had worked 11 hours per day in an atmosphere of strain and tension attempting to conclude contract negotiations with certain labor unions. The medical testimony, although disputed, showed that the long hours of work, coupled with the tense and trying conditions which surrounded them, could aggravate an existing hypertension which in turn could, and here did, precipitate a cerebral vascular accident

From the above evidence the commission found that Gregory's employment during the period from December 5, 1948, to February 9, 1949, 'subjected applicant to repeated physical and mental strains and tensions which said strains and tensions became excessive in cumulative effect and precipitated (a) cerebral vascular accident on February 9, 1949.' It then held that the injury arose out of and was incurred in the course of the employment. The findings and holding of the commission are supported by substantial evidence and there is therefore no question as to the compensability of Gregory's condition.

During the major part of the 65-day period leading up to the stroke, until January 25, 1949, the petitioner, Fireman's Fund Indemnity Company, was the employer's insurance carrier. On that date the employer changed carriers and substituted the Industrial Indemnity Company. The commission made an award against the two carriers jointly and severally.

Petitioner contends that since it ceased to insure the employer on January 25, 1949, and Gregory did not suffer his stroke until approximately 15 days later, February 9, 1949, it was not the carrier of the risk at the time of the injury and is therefore not liable. It further contends that if there was an injury on or before January 25, 1949, which resulted in the stroke on February 9, 1949, its liability therefor cannot be enforced because no proceeding was commenced for the collection of benefits until February 8, 1950, more than one year after the date petitioner ceased being the carrier of the risk. Labor Code § 5405. These contentions are untenable.

No contention is made by respondents that the situation here constitutes an 'occupational disease' within the meaning of Sections 5411 and 5412 of the Labor Code. However, they do contend, as does the Industrial Indemnity Company, that the stroke resulted from but one single and continuous injury which occurred over a 65-day period, and that the statute of limitations runs from the last date of suffering such injury. Section 5405 of the Labor Code fixes the period within which proceedings may be commenced as one year from 'the date of injury,' which, according to Section 5411, except in cases of occupational disease, 'is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed.'

The problem of this case is thus twofold. First, it must be determined whether the disability was the result of one continuous injury or whether there was a series of individual injuries. Second, assuming that there was but one continuous injury, it must be determined whether a carrier who ceased being the insurer more than a year prior to the filing of the claim may successfully plead the statute of limitations.

In Lumbermen's Mut. Cas. Co. v. Industrial Acc. Comm., 29 Cal.2d 492, at page 496, 175 P.2d 823, at page 826, this court stated: 'Where an employee suffers a heart attack brought on by strain and overexertion incident to his employment the injury or death is compensable, even though the idiopathic condition previously existed, and no traumatic injury is necessary. (Citing cases.)' It was then held in 29 Cal.2d at page 498, 175 P.2d at page 827: '* * * (T)he evidence does show that the accumulated effects of the overwork ultimately culminated in the disability that manifested itself on February 8, 1945. The injury, the overwork, was developing the disease all during the period of his employment, and February 7, 1945, was the last day of that process which without further work or activity in the employment became disabling the following day.'

We may accept these statements as authority for the conclusion that in the development of a stroke some point exists where without further strain and tension resulting from the employment, the stroke will result This point is reached through the cumulative effect of each day's strain and tension. Separately one day's strain may be slight, but when added to the strains which have preceded, it becomes a destructive force. Consequently, in deciding the responsibility for the stroke, it cannot be said that any one particular exposure to strain and tension was responsible. It can only be said that the total exposures resulted in the disability. Therefore, it must be concluded that the stroke here was the result of one continuous, cumulative injury rather than a series of individual injuries.

If the strain and tension to which Gregory was subjected constituted one continuous injury, the statute of limitations did not begin to run until the last exposure to the causative force. The Legislature has laid down the rule that the limitations period is to run from the time of the exposure. Labor Code § 5411. In the case of a continuous injury this can only mean the time of the last exposure. To require the employee to file his claim within a limited time from the first exposure would be unreasonable. After a single exposure the employee might be totally unable to notice that a deleterious effect has taken place. Only after extended exposure may the effects become noticeable. Consequently, it should only be after the exposures constituting the continuous injury have been concluded that the period of the statute of limitations commences to run. For a summary of the case law in this general field see Annotation, 11 A.L.R.2d 279.

Gregory filed his claim within the oneyear statutory period of limitations, Labor Code §§ 5405, 5411, from the cessation of the exposures, and his employer is therefore liable for the full extent of the disabilities. The respondent commission held the employer's insurance carriers jointly and severally liable, but petitioner argues that since more than one year had expired since it ceased being the carrier of the risk, its liability is barred by the statute of limitations.

It is the settled law of this state that the insurance carrier is directly and primarily liable for the payment of any compensation for which the employer is liable. Insurance Code § 11651; United States F. & Guaranty Co. v. Industrial Accident Comm., 195 Cal. 577, 234 P. 369. Thus it has been held that where the employer waived the statute of limitations, the insurance carrier is likewise deemed to have waived it, and its liability continues to be coextensive with the employer's liability. United States F. & Guaranty Co. v. Industrial Accident Comm., supra, 195 Cal. 577, 580, 234 P. 369. It is apparent therefore that we look to the employer to see whether the statutory period has run. In the case of a continuing...