McGee Street v. Appeals Bd.

• Decision Date: 12 May 2003
• Docket Number: No. B162142.,B162142.
• Citation: 133 Cal.Rptr.2d 813,108 Cal.App.4th 717
• Court: California Court of Appeals Court of Appeals
• Parties: McGEE STREET PRODUCTIONS et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Gabrielle Peterson, Respondents.

133 Cal.Rptr.2d 813

108 Cal.App.4th 717

McGEE STREET PRODUCTIONS et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Gabrielle Peterson, Respondents.

No. B162142.

Court of Appeal, Second District, Division 8.

May 12, 2003.

Rehearing Denied June 9, 2003.

Graves, Roberson & Bourassa and Stephen D. Roberson, Thousands Oaks, for Petitioners.

Bagby, Gajdos & Zachary and George J. Gajdos, Santa Ana, for Respondent Gabrielle Peterson.

No appearance for Respondent Workers' Compensation Appeals Board.

RUBIN, J.

We hold the Workers' Compensation Appeals Board (the Board) may not allow joinder of a new party after the expiration of the one-year statute of limitations for the filing of a serious and willful misconduct claim. (Lab.Code, § 5407.)¹ Accordingly, we annul the WCAB order in this case that permitted joinder.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are undisputed. Kenneth Peterson (Peterson) suffered a fatal heart attack while working on a movie production in Arizona on February 17, 2000. Peterson was employed by both a general employer and a special employer. The general employer was Entertainment Partners (Entertainment), which handled payroll and regular workers' compensation benefits. The special employer was the production company, McGee Street Productions (McGee Street). Peterson's wife, Gabrielle, filed claims against Entertainment for a specific and a cumulative trauma injury on behalf of her husband, herself and their two dependent children. Entertainment settled those claims.²

On February 2, 2001, within one year of the date of death, Gabrielle Peterson then filed a second petition, this time alleging serious and willful misconduct against only Entertainment. The petition alleged Entertainment employed Peterson as a transportation captain. California and Arizona Occupational Safety & Health Administration regulations required medical personnel on the scene. The employer's production manager on site was aware that, because of a traffic collision three days prior to Peterson's death involving the vehicle used by the medical personnel, the assigned medical equipment and supplies were unavailable. Accordingly, Entertainment was not able to render effective emergency care to Peterson when he suffered his heart attack. The petition alleged that Entertainment knowingly failed to comply with safety standards.

McGee Street was served by mail with a copy of the petition but was not named as a defendant. On April 19, 2001, more than one year after Peterson's death, an amended petition naming both McGee Street and Entertainment was served on McGee Street. An order joining McGee Street Productions issued on December 10, 2001.

On December 18, 2001, the attorney for McGee Street's insurance carrier objected to the order of joinder because he had not received notice of the hearing on the serious and willful claim. McGee Street also contended that Entertainment, not McGee Street, was the responsible party. The objection also referenced Hallmark Entertainment (Hallmark), the first mention of that entity in a document filed in the workers' compensation proceedings.

Meanwhile in October 2001, Entertainment filed a petition to dismiss based on its status as a general employer not involved in daily control or supervision over Peterson's duties, workplace or activities. On January 14, 2002, the workers' compensation judge (WCJ) dismissed Entertainment following a settlement with the Peterson family. On January 18, 2002, Ms. Peterson filed and served a second amended serious and willful petition, including both McGee Street and Hallmark. Hallmark objected to the second amended petition, contending there was no employment relationship between it and Peterson.

A bifurcated trial was set for June 12, 2002, on the sole issue of whether the serious and willful petitions against McGee Street and Hallmark were barred by Labor Code section 5407 because they were filed more than one year from the date of death.

At trial, Ms. Peterson argued that she had timely served Entertainment and, because liability of general and special employers was joint and several, service of the petition on Entertainment constituted timely service on McGee Street. Ms. Peterson further contended that Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 196, 211 Cal.Rptr. 461, supported a rule that amendments adding new parties relate back to the original petition. This rule, she argued, was consistent with the principle that dismissals based on pleading technicalities are disfavored. (See Liberty Mutual Ins. Co. v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 148, 167 Cal.Rptr. 57.) She also argued that McGee Street had made misrepresentations in which it denied the existence of an employment relationship and should, therefore, be estopped from raising the statute of limitations defense. Ms. Peterson contended that previously McGee Street had denied employment, even though its attorneys were in possession of pleadings previously filed indicating the existence of either a general or special employment relationship. Not until April 16, 2002, in its opposition to joinder did McGee Street for the first time admit Entertainment was the general employer and McGee Street was the special employer. It was only then that McGee Street abandoned its "no employment relationship" defense in favor of the statute of limitations. If Hallmark and McGee Street had initially raised the statute of limitations defense, Ms. Peterson contended, she would not have agreed to dismiss Entertainment. "However, on the representation made by the attorney for Hallmark Entertainment/McGee Street Productions, specifically that their objection to the joinder was based on an employment relationship and relying upon the Affidavit of Ms. Kay Kimmel, attached to the ... Petition to Dismiss, submitted by Entertainment Partners ... [Peterson] agreed to a Dismissal ...."

McGee Street and Hallmark argued that neither was named as a defendant in the original petition for serious and willful misconduct. The first and second amended petitions were filed more than one year from the date of death, and there was no authority permitting amendments to add new defendants after the time prescribed in the statute of limitations. Further, as in ordinary civil matters, an amendment that adds a new defendant does not relate back to the date of filing of the original complaint. McGee Street and Hallmark also contended Ms. Peterson was aware of her husband's dual employment situation and, citing Martin v. Phillips Petroleum Co. (1974) 42 Cal. App.3d 916,117 Cal.Rptr. 269 [disapproved on other grounds in Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 177, fn. 9, 151 Cal.Rptr. 671, 588 P.2d 811], a serious and willful claim must be filed against the special employer if it was the special employer who engaged in conduct giving rise to the claim. Finally, they claimed that denial of employment was only shorthand for their contention that they had no liability.

The WCJ found Peterson was unaware that McGee Street and Hallmark were employers at the time she filed the serious and willful petition. Based on Rubio v. Workers' Comp. Appeals Bd., supra, 165 Cal.App.3d at page 198, 211 Cal.Rptr. 461, the WCJ found that a serious and willful petition may be amended to add a new defendant. The WCJ further concluded that McGee Street and Hallmark had been served with the original petition against Entertainment and could not demonstrate lack of timely warning or prejudice. The WCJ rejected McGee Street and Hallmark's arguments based on the statute of limitations in the Code of Civil Procedure as inapplicable to workers' compensation proceedings, governed exclusively by the Labor Code. The WCJ concluded that given the liberal construction of workers' compensation laws (see § 3202; Fruehauf Corp. v. Workmen's Comp.App. Bd. (1968) 68 Cal.2d 569, 577, 68 Cal.Rptr. 164, 440 P.2d 236), the statute of limitations did not bar the present claims against McGee Street or Hallmark.

McGee Street and Hallmark sought reconsideration. The Board denied the petition and adopted the WCJ's report as its decision. This petition for review followed.

DISCUSSION

We first note that this is an issue of first impression. Interpretation of governing statutes is decided de novo by the appellate court, even though the Board's construction is entitled to great weight unless clearly erroneous. (Boehm & Associates v. Workers' Comp. Appeals Bd. (1999) 76 Cal.App.4th 513, 515-516, 90 Cal. Rptr.2d 486; Williams v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 1260, 1264, 88 Cal.Rptr.2d 798; Ralphs Grocery Co. v. Workers' Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 824, 45 Cal.Rptr.2d 197.) When interpreting a statute, the Legislature's intent must be determined and given effect. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Williams v. Workers' Comp. Appeals Bd., supra, at p. 1265, 88 Cal.Rptr.2d 798.) The best indicator of legislative intent is the plain meaning of the statutory language, when clear and unambiguous. (Du-Bois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer v. Workmen's Comp. Appeals Bd., supra, at p. 230, 110 Cal. Rptr. 144, 514 P.2d 1224; Boehm & Associates v. Workers' Comp. Appeals Bd., supra, at p. 516, 90 Cal.Rptr.2d 486; Williams v. Workers' Comp. Appeals Bd., supra, at p. 1265, 88 Cal.Rptr.2d 798.) Effect also should be given to the entire statute, thereby leaving no part or provision useless, deprived of meaning or contradictory. (DuBois v. Workers' Comp. Appeals Bd., supra, at p. 388, 20 Cal. Rptr.2d 523, 853 P.2d 978; Moyer v. Workmen's Comp. Appeals Bd., supra, at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) The statute should be interpreted consistently with its intended purpose, and harmonized within the statutory framework as a whole. (DuBois v. Workers' Comp. Appeals Bd....