Morris v. County of Marin
| Decision Date | 19 August 1975 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Richard MORRIS, Plaintiff and Appellant, v. COUNTY OF MARIN, Defendant and Respondent, Department of Industrial Relations, Claimant and Respondent. Civ. 34831. |
Hoberg, Finger, Brown & Abramson, Richard H. Carlson, San Francisco, for plaintiff and appellant.
Boornazian, King & Schulze, George King, James L. McIntosh, Oakland, Douglas T. Maloney, Marin County Counsel, Allen A. Haim, Deputy County Counsel, San Rafael, for defendant and respondent.
Evelle J. Younger, Atty. Gen., Gordon Zane, Deputy Atty. Gen., San Francisco, for lien claimant.
Richatd Morris appeals from a judgment of dismissal after the sustaining of the demurrer of the County of Marin without leave to amend.
Appellant's first amended complaint seeks to state a cause of action for negligence against the County of Marin (hereafter, the County) on the theory that Labor Code, section 3800 establishes a mandatory duty upon the County to require evidence of workmen's compensation insurance prior to issuing a building permit for a project which will employ persons subject to workmen's compensation laws.
The complaint alleges that on October 4, 1972, which working in the course and scope of his employment for Guy Cahoon and performing certain construction work, appellant fell from a platform and suffered injuries causing permanent paraplegia. Cahoon carried no workmen's compensation insurance. 1 Before Cahoon could lawfully commence the construction he was required by the County of Marin to apply for and obtain a building permit. Cahoon did apply for and obtain a building permit; however, County did not request or secure evidence that Cahoon was covered by workmen's compensation insurance. Appellant's injuries were compensable under the laws of workmen's compensation had such insurance existed.
Appellant alleges that an award under the Uninsured Employers Fund (Lab.Code § 3706 et seq.) is uncollectible as the Uninsured Employers Fund is unfunded.
The Attorney General of the State of California, on behalf of the Department of Industrial Relations as Administrator of the Uninsured Employers Fund, Lien claimant below, adopts and urges the correctness of appellant's arguments.
Appellant urges that Labor Code, section 3800 places upon respondent the mandatory duty to obtain evidence that an employer who obtains a building permit from respondent has workmen's compensation insurance, and failure to discharge that duty gives rise to a cause of action for damages.
Labor Code, section 3800 provides:
Every county or city which requires the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition or repair of any building or structure shall require that each applicant for such permit have on file or file
(1) A certificate of consent to self-insure issued by the Director of Industrial Relations, or
(2) A certificate of workmen's compensation insurance issued by an admitted insurer, or
(3) An exact copy or duplicate thereof certified by the director or the insurer.
The certificate of insurance shall state that there is in existence a valid policy of workmen's compensation insurance in a form approved by the Insurance Commissioner. The certificate shall show the expiration date of the policy. No insurer shall issue such certificate unless the full deposit premium on the policy has been paid, and the insurer shall give the county or city at least 10 day's advance notice of the cancellation of the policy.
This section shall not apply if
(1) The permit is for one hundred dollars ($100) or less, or
(2) The applicant for the permit signs a certificate which reads as follows, or the wording of which has been approved by the Director of Industrial Relations:
'I certify that in the performance of the work for which this permit is issued I shall not employ any person in any manner so as to become subject to the workmen's compensation laws of California.'
If, after making such certificate, the applicant for the permit should become subject to the workmen's compensation provisions of this code, he shall forthwith comply with the provisions of Section 3700 or his permit shall be deemed revoked.
Appellant cites Government Code, section 815.6, which provides: 'Where a public entity is under a mandatory duty imposes by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public establishes that it exercised reasonable diligence to discharge the duty.' He also cites Labor Code, section 15, which provides: "Shall' is mandatory and 'may' is permissive.'
County contends that Labor Code section 3800 imposes a discretionary duty, and as such no liability can result from its failure to obtain evidence of workmen's compensation insurance. We agree.
Even though the language of a statute may be permissive or mandatory, the use of the terms 'may' and 'shall' is not necessarily dispositive. (See Garcia v. Industrial Acc. Com. (1958) 162 Cal.App.2d 761, 328 P.2d 561; Giacalone v. Industrial Acc. Com. (1953) 120 Cal.App.2d 727, 262 P.2d 79, overruled on other grounds in Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 87, 293 P.2d 18.)
Requirements of statutes are directory, not mandatory, unless means be provided for their enforcement. (Gowanlock v. Turner (1954) 42 Cal.2d 296, 301, 267 P.2d 310 (); Castorena v. City of Los Angeles (1973) 34 Cal.App.3d 901, 110 Cal.Rptr. 569 (); Adler v. City Council (1960) 184 Cal.App.2d 763, 7 Cal.Rptr. 85 (); Stribling v. Mailliard (1970) 6 Cal.App.3d 470, 85 Cal.Rptr. 924 (...
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Reid v. United States
...bases her argument on two California cases, Elson v. PUC, 51 Cal.App.3d 577, 124 Cal.Rptr. 305 (1975); Morris v. County of Marin, 50 Cal.App.3d 711, 123 Cal.Rptr. 759 (1975), hearing In Elson, plaintiff was injured when struck by a bus. The bus company was uninsured, and plaintiff brought s......