Hendy v. Losse

Decision Date02 October 1990
Docket NumberNo. D010557,D010557
Citation274 Cal.Rptr. 31,231 Cal.App.3d 1149
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 231 Cal.App.3d 1149 231 Cal.App.3d 1149 John and Wanda K. HENDY, Plaintiffs and Appellants, v. Gary LOSSE, M.D., et al., Defendants and Respondents.

Professional football player who injured his right knee while playing football for professional football team brought action against the team and the team's physician, and player's wife brought loss of consortium claim against the defendants. Player's causes of action against team were dismissed upon removal to federal court. Thereafter, the Superior Court of San Diego County, No. 603318, William C. Pate, J., sustained the demurrers of the defendants. Player and his wife appealed. The Court of Appeal, Todd, Acting P.J., held that: (1) Workers' Compensation Act did not provide exclusive remedies, and thus plaintiffs could maintain action against physician, and (2) wife's loss of consortium claim would be joined with player's case in his grievance proceeding with the team.

Affirmed in part and reversed in part.

Howarth & Smith, Don Howarth and Barbara Gregg Glenn, Los Angeles, for plaintiffs and appellants.

Ault, Deuprey, Jones, Danielsen and Gorman and Michael J. Grace, San Diego, for defendant and respondent Losse.

Luce, Forward, Hamilton & Scripps, Richard R. Spirra, Lawrence J. Kouns and Nathan S. Arrington, San Diego, for defendant and respondent San Diego Chargers Football Co.

TODD, Acting Presiding Justice.

John Hendy injured his right knee while playing football for the San Diego Chargers Football Company (Chargers or Club). Pursuant to his contract with the Chargers, he sought medical attention from the club physician, Gary Losse, M.D., who recommended Hendy continue to play. Hendy followed this advice, and, as a consequence, the injury to his knee was aggravated. Hendy and his wife, Wanda, sued both Losse and the Chargers. The Chargers removed the lawsuit to federal court, where John Hendy's causes of action against the Chargers were dismissed on the basis of federal preemption and the remainder of the suit was remanded to state court. Losse demurred in superior court on the basis that the state's Worker's Compensation Act (LABOR CODE, §§ 32001 et seq.) barred the Hendys' tort claims against him. The Chargers also demurred to Wanda's loss of consortium claim. The trial court sustained the demurrers without leave to amend, and judgment was entered in favor of Losse and the Chargers. The Hendys appeal.


On the same day he injured his knee, August 11, 1986, Hendy sought and obtained medical advice and treatment from club physician Losse. Under the terms of its contract with Hendy, the Chargers made Losse's services available to Hendy. The contract required Hendy to consult the club physician as a condition of receiving medical care at the club's expense and continuing to receive his salary.

On May 18, 1987, Losse advised Hendy to continue playing football. Hendy again sustained injuries to his right knee on May 28, 1987, while playing in a regular and scheduled training session. The same day he Hendy also sought and obtained medical advice and treatment from Losse for the injuries to his right knee. On June 2, 1987, Losse advised Hendy to continue to play football.

On September 1, 1987, the Chargers notified Hendy it was terminating his employment as a player. On September 8, 1987, Hendy consulted a physician who was not employed by the club and was told the cause of his injuries was Losse's failure to properly diagnose and treat his condition.

On September 2, 1988, Hendy and Wanda filed a lawsuit against Losse and the Chargers. The complaint stated five causes of action: (1) negligent hiring and retention against the Chargers for retaining a club physician without the necessary knowledge and skill to properly care for Hendy's condition; (2) intentional misrepresentation regarding Hendy's condition against the Chargers and Losse; (3) negligent misrepresentation regarding Hendy's condition against the Chargers and Losse; (4) medical malpractice against Losse; and (5) loss of consortium on behalf of Wanda against the Chargers and Losse.

The complaint alleged Losse was negligent in diagnosing and treating Hendy's condition or in the alternative correctly knew Hendy's condition but did not disclose it to Hendy and instead made false misrepresentations about it to him.

On November 18, 1988, the Chargers filed a petition to remove the Hendys' lawsuit from Superior Court to the United States District Court pursuant to 28 U.S.C. section 1441 because all causes of action were subject to the terms of the National Football League Players Association Collective Bargaining Agreement and therefore preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. section 185. Losse joined in the petition for removal.

On March 23, 1989, United States District Court Judge J. Lawrence Irving granted the Chargers' motion to dismiss the first, second and third causes of action on the ground that the Hendys had failed to exhaust their contractual remedy through the grievance process provided for in Hendy's contract with the Chargers. Judge Irving also granted the Hendys' motion to remand their fourth and fifth causes of action to state court.

After the remand to state court, both Losse and the Chargers filed the demurrers which the trial court sustained without leave to amend on June 1, 1989. A judgment of dismissal was entered on July 3, 1989.


The rules for review of a judgment following sustaining of a demurrer are well settled. The court accepts all facts alleged in the complaint as true for purposes of review. (McHugh v. Howard (1958) 165 Cal.App.2d 169, 174, 331 P.2d 674.) The test is whether those facts are sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

At the onset, we note that after the remand to state court, the only cause of action involving the Chargers before the trial court was Wanda's claim for loss of consortium. (See discussion in part III, B of this opinion, infra.) Thus, we are primarily concerned here with whether Hendy can state a viable cause of action against Losse 2 notwithstanding the exclusive remedy provisions of the Act.

Subject to certain narrowly defined exceptions, the Act provides the exclusive remedy for injuries arising within the course of employment. (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 473, 165 Cal.Rptr. 858, 612 P.2d 948.) When the conditions of compensation exist, an injured worker's exclusive remedy is the compensation available under the Act. (§§ 3600, 3601.) Those conditions exist where the injury arises out of and in the course of employment and is proximately caused by the employment. (§ 3600.) Section 3601 extends the exclusive remedy protection of the Act to co-employees who cause injuries while acting within the scope of their employment so long as there is no finding of willful or reckless conduct.

Here, in resolving whether the demurrer as to Losse was properly sustained, we must determine if the Act bars the Hendys' claims against Losse, a co-employee. 3 In other words, is there a valid exception to the exclusivity provisions of the Act that will allow a viable cause of action to be stated? The trial court considered two theories--dual capacity and intentional concealment of injury--and rejected both. 4 We shall review each of these theories separately; if either one is applicable, the demurrer as to Losse was improperly granted.


As we indicated above, ordinarily workers' compensation is an employee's exclusive remedy against an employer or co-employee for injuries arising out of and in the course of employment. One exception to exclusivity that California courts have developed is the dual capacity doctrine. Under the dual capacity theory, when an employer bears two separate relationships to his employee, each giving rise to separate legal obligations, the defendant employer is subject to liability for damages arising from the relationship distinct from that of employer and employee. (D'Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 666-667, 166 Cal.Rptr. 177, 613 P.2d 238.) 5 The decisive test of this dual capacity doctrine is whether the nonemployer aspect of the employer's activity generated a different set of obligations by the employer toward the employee. ( Id. at p. 667, 166 Cal.Rptr. 177, 613 P.2d 238.)

Here, the issue is does Losse's status as club physician operate as a total bar to a malpractice action by his co-employee Hendy or does his role as club physician give rise to a second set of obligations above and beyond his status of co-employee?

California has long recognized that doctors in the employ of companies may operate in the dual capacity of co-employee and physician and have held they are not shielded from malpractice actions by reason of their co-employee status. (Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8; D'Angona v. County of Los Angeles, supra, 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238; Hoffman v. Rogers (1972) 22 Cal.App.3d 655, 99 Cal.Rptr. 455.) 6

The California Supreme Court first enunciated the dual capacity doctrine in Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8, which involved malpractice by both the employer and a co-employee in addition to the industrial injury. In Duprey, a nurse, employed by a partnership composed of chiropractors, was injured in the course of her employment. She was treated by Dr. Shane, a partner, and by Dr. Harrison, an employee of the partnership. The Supreme Court held that even though the nurse had recovered workers' compensation benefits for her initial on-the-job injury, she could also pursue an action at law for damages against the partnership, the partners and both...

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  • Hendy v. Losse
    • United States
    • California Supreme Court
    • January 17, 1991
    ...v. Gary LOSSE, M.D., et al., Respondents. No. S018325. Supreme Court of California, In Bank. Jan. 17, 1991. Prior report: Cal.App., 274 Cal.Rptr. 31. Respondents' petition for review LUCAS, C.J., and PANELLI, ARABIAN and BAXTER, JJ., concur. ...

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