Strickland v. Foster

• Citation: 165 Cal.App.3d 114,211 Cal.Rptr. 305
• Court: California Court of Appeals Court of Appeals
• Decision Date: 28 February 1985
• Parties: Magda STRICKLAND, Plaintiff and Appellant, v. Robert FOSTER, Defendant and Respondent. AO23670.

Page 305

211 Cal.Rptr. 305

165 Cal.App.3d 114

Magda STRICKLAND, Plaintiff and Appellant, v. Robert FOSTER, Defendant and Respondent.

AO23670.

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

Feb. 28, 1985.

John H. Peterson & Richard L. Spector, Walnut Creek, for plaintiff and appellant.

Mark Oium, O'Connor, Cohn, Dillon & Barr, San Francisco, for defendant and respondent.

ELKINGTON, Acting Presiding Justice.

Plaintiff Magda Strickland appeals from a summary judgment in favor of defendant Robert Foster, in her action for damages for the wrongful death of her husband, Edwin Strickland (hereafter deceased).

The facts upon which the summary judgment was entered are not in dispute.

The deceased was a truck driver employed by defendant Robert Foster, who was in the business of furnishing trucks and drivers to others for compensation. He furnished a truck driven by the deceased to Logex Trucking Company, which exercised such a degree of control over the truck and driver, as to itself also became an employer. Logex Trucking Company carried worker's compensation insurance, and Robert Foster did not. While in the employment of both parties, deceased suffered a work-incurred injury which proximately resulted in his death.

Plaintiff Magda Strickland, the deceased's dependent wife, thereafter sought, and obtained, a worker's compensation death benefit award, jointly and severally, against the uninsured, Robert Foster, and the insured Logex Trucking Company's insurance carrier, Home Indemnity Company.

Contemporaneously she commenced the instant wrongful death action against the uninsured employer, Robert Foster. On Robert Foster's motion, summary judgment was entered in his favor against plaintiff Magda Strickland. It is from such summary judgment that the instant appeal was taken.

The issue in the superior court summary judgment proceedings was whether, on the above-stated uncontroverted facts, plaintiff Magda Strickland was entitled to maintain her action against Robert Foster.

We are of course concerned with the "Worker's Compensation and Insurance" provisions found in Labor Code sections 3201-4386, inclusive.

Labor Code section 3700 requires that: "Every employer ... shall secure the payment of [worker's] compensation...." (Our emphasis.)

Labor Code section 3706 states: "If any employer fails to secure the payment of compensation, any injured employee or his dependents may proceed against such employer by filing an application for compensation with the appeals board, and, in addition, may bring an action at law against such employer for damages, as if this division did not apply."

"Where an employer within the scope and subject to the operation of the workmen's compensation law fails to secure the payment of compensation, any injured employee may file an application for compensation with the Industrial Accident Commission [now Worker's Compensation Appeals Board] and in addition bring an action at law against such employer for damages. (Lab.Code, § 3706....) The right of the injured employee to bring an action at law for damages may be exercised independently of any proceeding before the Industrial Accident Commission.... Nor does the fact that the plaintiff in any such action has received payment of an award made in his favor by the Industrial Accident Commission deprive the court of jurisdiction of such action." (Hall v. Burton, 201 Cal.App.2d 72, 79, 19 Cal.Rptr. 797, and see authority there collected.)

Labor Code section 3202 instructs that: "The [worker's compensation] provisions of ... this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." The provisions of this section are "mandatory" (Industrial Indem. Exch. v. Ind. Acc. Com., 87 Cal.App.2d 465, 467, 197 P.2d 75); "they are [applicable to] all aspects of workmen's compensation, including penalties" (Kerley v. Workmen's Comp. App. Bd., 4 Cal.3d 223, 227, 93 Cal.Rptr. 192, 481 P.2d 200) such as are assessed for failure to provide the required insurance.

And: "The social public policy of the state is declared in the statute, which, it is said, is intended to make effective a complete system of workmen's compensation irrespective of the fault of any party, and, also to require full provision for adequate insurance coverage against the liability to pay or furnish compensation." (Rideaux v. Torgrimson, 12 Cal.2d 633, 637, 86 P.2d 826; our emphasis.)

Here a worker's compensation award was entered, jointly and severally against the uninsured employer, Robert Foster, and the insured employer's insurance carrier, Home Indemnity Company. Robert Foster carried no insurance to cover the award. And if, as probably happened, Home Indemnity Company was obliged to pay the entire award, it became entitled to a proper apportionment of liability for the...