Gastelum v. City of Torrance

• Decision Date: 12 December 1969
• Citation: 82 Cal.Rptr. 732,2 Cal.App.3d 582
• Court: California Court of Appeals Court of Appeals
• Parties: Maria Adela GASTELUM, Lourdes Gastelum, Josephina Alvarado, Maricela Alvarado, Javier Alvarado, Rosa Elena Alvarado, Jesus Manuel Alvarado, and Blanca Armida Alvarado, Plaintiffs and Respondents, v. CITY OF TORRANCE, a Municipal Corporation, and Dominquez Water Corporation, a Corporation, Defendants and Appellants. Civ. 34129.

Page 732

82 Cal.Rptr. 732

2 Cal.App.3d 582

Maria Adela GASTELUM, Lourdes Gastelum, Josephina Alvarado, Maricela Alvarado, Javier Alvarado, Rosa Elena Alvarado, Jesus Manuel Alvarado, and Blanca Armida Alvarado, Plaintiffs and Respondents, v. CITY OF TORRANCE, a Municipal Corporation, and Dominquez Water Corporation, a Corporation, Defendants and Appellants.

Civ. 34129.

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

Dec. 12, 1969.

Howard W. Shelton, Long Beach, for defendant and appellant City of Torrance, a Municipal Corporation.

McBain & Morgan, and Angus C. McBain and Kermit J. Morgan, Los Angeles, for defendant and appellant Dominguez Water Corporation.

Richards, Watson & Hemmerling, and Robert L. Hitchcock, Los Angeles, for plaintiffs and respondents Gastelum.

Manuel Hidalgo, Los Angeles, for plaintiffs and respondents Alvarado.

THOMPSON, Associate Justice.

This appeal reaches us on an agreed statement of facts. ¹ A jury awarded respondents damages in the amount of $290,000 for the wrongful death of Alvarado. The decedent, while working within the scope of his employment, was killed in an accident resulting from the concurrent negligence of appellants and his employer. Prior to trial, respondents were awarded death benefits and burial expenses payable by the Workmen's Compensation carrier for the employer. The death benefit award was $20,500, payable at the rate of $70 per week 'until fully paid.' At the time of judgment, $7,200 of the award was unpaid.

The trial court rendered judgment pursuant to the jury verdict reducing the award by $13,900, the amount that had been paid on the Workmen's Compensation death benefit award to the date of judgment. ² The trial court did not reduce the judgment by the remaining balance of the death benefit award. Appellants assert that it should have done so.

The issue raised on this appeal is a part of the fallout of Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 360 P.2d 641, which establishes the principle that while an employer or its Workmen's Compensation carrier is normally entitled to reimbursement from a third party tortfeasor for compensation benefits paid for injuries caused by the third party, the rule of reimbursement is inapplicable where the employer's negligence contributes to the injury. Witt holds that in such cases the judgment against the third party tortfeasor is to be reduced by the amount of the compensation benefits paid. The question now before us concerns the applicability of that principle to Workmen's Compensation benefits to be paid in the future.

A related question was before the Court of Appeal in Slayton v. Wright, ^a 271 Cal.App.2d ---, 76 Cal.Rptr. 494 (hearing denied by the Supreme Court May 21, 1969). Slayton deals with the offset against a personal injury judgment of amounts payable in the future by reason of a permanent disability Workmen's Compensation award for an injury caused by the concurrent negligence of the third part tortfeasor and the employer of the injured party. It holds that (271 Cal.App.2d at p. ---, 76 Cal.Rptr. at p. 502): '* * * the Witt doctrine should not be extended to allow a deduction for compensation benefits which might be payable in the future.'

Denial of hearing by the Supreme Court in Slayton compels us to reach the same result in the case at bench. Appellants argue that the future periodic Workmen's Compensation benefits payable for permanent disability in Slayton were contingent upon the continued survival of the injured party and that therefore the total amount eventually...