Subsequent Injuries Fund of Cal. v. Industrial Acc. Commission
| Decision Date | 12 November 1951 |
| Court | California Supreme Court |
| Parties | SUBSEQUENT INJURIES FUND OF CALIFORNIA, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION; Sierra Consclidated Mines, Inc., dba Silverado Mine; Lava Cap Gold Mining Co., a corp.; Darwin Lead Co., Inc.; U. S. Vandium Co., a corp.; Mutual Gold Corp., a corp.; John N. Rosecrans and Henry W. Klipstein, dba Roseklip Mines; E. L. Cord; T. E. Connolly, Inc., and/or Hanrahan Co., a joint venture; Perry G. Sexton, an individual; Sierra Talc and Clay Co., a corp.; William B. Bonham, an individual dba White Mountain Talc Mine; L. D. Foreman& Co.; Tungstar Corp.; W. D. Goyn and H. C. Goyn, dba Goyn Bros.; Daniel G. Longtin Co.; A. L. Foss and J. L. Osborne, dba Surprise Mine; Owens Tunnell Contractors; Ray and Lloyd McMurray dba McMurray Mining Co.; Hinkle and Smith, co-partners dba Morning Glory Mine; State Compensation insurance Fund; Industrial Indemnity Exchange, an inter-insurance exchange; Colonial Insurance Co., a corp.; Pacific Employers Insurance Co., a corp.; California Compensation Insurance Co., a corp., successors in interest to Limited Mutual Compensation Insurance Co., a corp.; Industrial Indemnity Co., a corp.; Argonaut Insurance Exchange, an inter-insurance exchange; Zenith National Insurance Co., a corp.; and Pat Costello, Respondents. L. A. 24469. |
Edmund G. Brown, Atty. Gen., Irving H. Perluss, Asst. Atty. Gen., and F. G., Girard, Deputy Atty. Gen., for petitioner.
Everett A. Corten, Daniel C. Murphy, San Francisco, Edward A. Sarkisian, Los Angeles, Donald Gallagher and Loton Wells, San Francisco, for respondents.
Petitioner, State of California Subsequent Injuries Fund, seeks annulment of a reimbursement award against it made by respondent commission in a proceeding by various insurance carriers to secure, under the provisions of section 5500.5 of the Labor Code, apportionment of liability to an employe who in June, 1954, became permanently totally disabled from silicosis suffered as the result of successive employments over a period of some 40 years. We have concluded that the commission correctly determined that the section authorizes reimbursement from the fund to a carrier as well as to an employer, that such authorization is constitutional, and that the award should be affirmed.
Various aspects of section 5500.5 were considered by this court in the Erickson (State of California v. Industrial Acc. Comm. (1957), 48 Cal.2d 355, 310 P.2d 1) and Walters (State of California v. Industrial Acc. Comm. (1957), 48 Cal.2d 365, 310 P.2d 7) cases. In Erickson we held that the statute did not apply retrospectively so as to permit reimbursement where the silicosis (from underground metal mining exposures) had become disabling prior to effective date of the statute. In Walters constitutionality of the reimbursement provisions was upheld, with the further ruling that under the statutory language reimbursement could be ordered only in a supplemental apportionment proceeding and not in the original proceeding in which award in favor of the employe was made.
In the present (Costello) case the fund urges both (1) that the language of the statute does not authorize reimbursement to an insurance carrier as distinguished from an employer, and (2) that if the statute does so authorize then it is to that extent unconstitutional.
1. Although the language used does not expressly permit reimbursement payments to a carrier, it does include a legislative declaration that 'It is inequitable that total ultimate liability should fall on one or more such (underground metal mining) employers who happen to be solvent or have solvent insurance carriers within the commission's jurisdiction or in reach of its process.' (Italics added.) If an employer does have a solvent insurance carrier then of course liability, as the term is commonly used, falls on the carrier rather than on the employer. But the liability is basically that of the employer; it is essentially that of the employer because it is the premiums paid by the many employers which support the insurance carriers who, in the aggregate, constitute the medium whereby the risks and costs of the individual employers are spread over the industry as a whole. Hence, while insurance carriers are normally spoken of as 'underwriters,' it is ultmately the employers (and the consuming public) who pay the toll. Therefore, it is reasonable to conclude that the quoted provision contemplates reimbursement of the carrier as well as of the employer.
Moreover, as pointed out by the commission, various other statutory provisions indicate that no distinction is intended as between the employer and the carrier with respect to reimbursement rights. For instance, section 3759 of the Labor Code permits the commission to 'enter its order relieving the employer from liability where it appears * * * that an insurer joined as a party * * * is liable * * *' Section 11662 of the Insurance Code provides for subrogation of the insurer to the rights of the employer. 1 Other provisions are that payment of compensation by either employer or insurer bars recovery (by the employe) from the other (Lab.Code, § 3754); that the insurer will be 'directly and primarily liable' to a proper claimant for the compensation for which the employer is liable (Ins.Code, § 11651); that notice to, or knowledge of, the employer of injury, is notice to the insurer (Ins.Code, § 11652); that jurisdiction over the employer is jurisdiction over the insurer (Ins.Code, § 11653).
Further, the fund presents statistics indicating that in the year (1951) that section 5500.5 became effective only one underground metal mining operator was permissively self-insured in this state. If reimbursement is not allowed to carriers as well as to employers, then the anomaly would be presented that, at least in the year of enactment of the section, only one lawfully self-insured employer in the entire state, plus employers unlawfully not insured at all, would receive direct benefits benefits denied to insured employers. Also, as mentioned by the...
To continue reading
Request your trial
-
Graphic Arts Mut. Ins. v. Time Travel
...had already interpreted the statute's reference to "employer" to include insurance carriers. For example, in State of Calif. v. Industrial Acc. Com. (1957) 49 Cal.2d 354, 317 P.2d 8, several insurance carriers successfully obtained a reimbursement award against the state's subsequent injuri......
-
Tidewater Oil Co. v. Workers' Comp. Appeals Bd.
...P.2d 1 (discussing procedure under § 5500.5 and upholding the statute not to apply retroactively); 6 State of Calif. v. Industrial Acc. Com. (Costello), (1957) 49 Cal.2d 354, 317 P.2d 8 (applying Walters rule to allow reimbursement of insurance carrier from subsequent injuries fund and upho......
-
San Diego Cnty. Sch. Risk Mgmt. Joint Powers Auth. v. Liberty Ins. Corp.
...and primarily liable" for payment of compensation to an injured worker. See id. (citing Subsequent Injuries Fund of Calif. v. Industrial Acc. Com. , 49 Cal. 2d 354, 356, 317 P.2d 8 (1951) ). Liberty asserts that excess insurers such as Liberty and Wesco provide only reimbursement of benefit......
-
General Accident Ins. Co. v. Workers' Comp. Appeals Bd.
...is thus entitled to the same remedies as those which accrue to the employer. For example, in Subsequent Injuries Fund of Calif. v. Industrial Acc. Com. (1951) 49 Cal.2d 354, 317 P.2d 8, several insurance carriers successfully obtained a reimbursement award under section 5500.5 against the s......