Maillet v. Workmen's Comp. Appeals Bd.

• Decision Date: 26 January 1972
• Citation: 23 Cal.App.3d 107,99 Cal.Rptr. 925
• Court: California Court of Appeals Court of Appeals
• Parties: Laurier MAILLET, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, et al., Respondents. Civ. 38750.

Page 925

99 Cal.Rptr. 925

23 Cal.App.3d 107

Laurier MAILLET, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, et al., Respondents.

Civ. 38750.

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

Jan. 26, 1972.

Hearing Denied April 26, 1972.

Riedman, Dalessi, Deukmejian, Henry & Woods and Stanley M. Henry, Long Beach, for petitioner.

Mansell & Giddens, Los Angeles, R. E. Smith, San Francisco, John L. Maier, and F. W. Giddens, Los Angeles, for respondents Industrial Indemnity Co., T.P. Polich and Polich-Benedict Construction Co., Inc.

Rupert A. Pedrin and Jon L. Gateley, San Francisco, for respondent Workmen's Compensation Appeals Board.

LILLIE, Associate Justice.

Petitioner Maillet (employee) seeks review and annulment of decision of respondent Appeals Board, upon reconsideration, which granted his employer credit against the latter's future compensation liability in an amount equal to the employee's net recovery from a third party in a civil suit. In the civil action, in which respondent carrier intervened, it was determined that the employer's concurrent negligence contributed to the employee's injuries consisting of an electric shock sustained while operating an electric drill supplied by the third party (E-Z Dunn Rentals); the actual verdict ($158,731.79) was reduced by $8,731.79, the amount of compensation already paid to petitioner-employee, in conformity with the rule announced and discussed in Witt v. Jackson, 57 Cal.2d 57, 71--73, 17 Cal.Rptr. 369, 366 P.2d 641, and followed in De Cruz v. Reid, 69 Cal.2d 217, 222--223, 70 Cal.Rptr. 550, 554, 444 P.2d 342, 346. ¹

As in Gastelum v. City of Torrance, 2 Cal.App.3d 582, 583, 82 Cal.Rptr. 732, 733, 'The issue raised on this appeal is a part of the fallout of Witt v. Jackson,' which case (we there pointed out) establishes the principle (mentioned in the footnote) that in circumstances similar to those at bar there must be a reduction of the judgment against the third party tortfeasor by the amount of the compensation benefits paid. Similarly, as in Gastelum, 'The question now before us concerns the applicability of that principle to Workmen's Compensation benefits to be paid in the future.' (P. 583, 82 Cal.Rptr. p. 733.)

It appears that respondent carrier, upon entry of judgment in the third party action, immediately stopped payment of compensation benefits claiming credit as a result of that determination; later a formal petition for credit was filed with respondent Appeals Board and, by stipulation, the entire matter remained off-calendar awaiting the outcome of Nelsen v. Workmen's Comp. App. Bd., then pending in which the identical issue was presented. On September 22, 1970, Nelsen was decided (11 Cal.App.3d 472, 89 Cal.Rptr. 638) holding that respondent board erred in holding that the employer's liability for further benefits should be credited with employee's net recovery from the third party; a hearing by the Supreme Court was subsequently denied. Still later, in Serrano v. Workmen's Comp. Appeals Bd., 16 Cal.App.3d 787, 94 Cal.Rptr. 511, the court again annulled an order of respondent board crediting a third party judgment against the carrier's remaining liability to the employee; Nelsen was quoted in pertinent part and followed. ² In its decision (on reconsideration) here under review the board acknowledged that 'At least two divisions of the Court of Appeal have also wrestled with the problem and have reached a result contrary to ours.' After asserting that no court in this district has yet 'spoken on the issue,' respondent accordingly felt 'justified in following what we consider to be the clear mandate of the Supreme Court that there may be no double recovery.'

The basis for respondent board's lastquoted statement is found in Brown v. Superior Court, 3 Cal.3d 427, 433, 90 Cal.Rptr. 737, 476 P.2d 105, where reference is made to the Witt 'rulings' proscribing 'double recovery.' ³ Significantly, however, Brown was decided just 12 days prior to the denial of a hearing in Nelsen. In the latter case it was held that 'Witt's prohibition of double recovery 'is nothing more than a reference to the usual rule of law existing in negligence actions generally, that a partial satisfaction of the liability by a Joint or concurrent tortfeasor will result in a Pro tanto reduction of the liability of the other tortfeasors' (De Cruz v. Reid, Supra, 69 Cal.2d at pp. 225--226, 70 Cal.Rptr. at p. 556, 444 P.2d at p. 348) (original italics), and the court has clearly indicated that the collateral source rule of damages is inapplicable when workmen's compensation payments are received from an employer whose causative negligence is concurrent with that of a third party tortfeasor. (Id., pp. 223--227, 70 Cal.Rptr. 550, 444 P.2d 342 . . .)' (Nelsen v. Workmen's Comp. App. Bd., Supra, 11 Cal.App.3d at p. 477, 89 Cal.Rptr. at p. 640.) In Nelsen, as here, respondent board purported to act under Labor Code sections 3858 and 3861, allowing reimbursement or credit (as the case may be); in that regard the court pointed to the emphasis in Witt 'that 'there is nothing in the Labor Code to suggest that the Legislature contemplated that a negligent employer could take advantage of the Reimbursement remedies that those sections provide. In the absence of express terms to the contrary, these provisions must be deemed to be qualified by Civil Code section...