Tate v. Superior Court for Los Angeles County

• Decision Date: 20 February 1963
• Citation: 28 Cal.Rptr. 548,213 Cal.App.2d 238
• Parties: Wendell D. TATE, Jack H. MacDonald Company, Inc., and Jack H. MacDonald, Petitioners, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Nicholas T. LEVATO, Real Party in Interest. Civ. 26836.
• Court: California Court of Appeals Court of Appeals

Page 548

28 Cal.Rptr. 548

213 Cal.App.2d 238

Wendell D. TATE, Jack H. MacDonald Company, Inc., and Jack H. MacDonald, Petitioners, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent;

Nicholas T. LEVATO, Real Party in Interest.

Civ. 26836.

District Court of Appeal, Second District, Division 3, California.

Feb. 20, 1963.

Hearing Denied April 17, 1963.

Jarrett & Morgan, Frank W. Woodhead, Chase, Rotchford, Downen & Drukker, Richard L. Berger, and Henry F. Walker, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel (Los Angeles), and Donald K. Byrne and John J. Collins, Deputy County Counsel, for respondent.

Arthur Garrett, Los Angeles, for real party in interest.

FILES, Justice.

This proceeding involves the application of the principle of Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, to a personal injury action which was at issue before that case was decided. A plaintiff, who has received compensation from his employer, has brought a common-law negligence action against three other parties. These defendants now desire to plead that the employer was also negligent, attempting thereby to bar such portion of the plaintiff's recovery as would be applied to the benefit of the employer.

The facts before this court, as set forth in the petition and the return of the real party in interest, are not in substantial dispute.

On January 12, 1959, Nicholas T. Levato (plaintiff) brought an action in the superior court (respondent) against Wendell D. Tate (defendant Tate), Jack H. MacDonald Company and Jack H. MacDonald (collectively called defendants MacDonald). That action is to recover damages for bodily injuries sustained by plaintiff on January 13, 1958, while working for a contractor named Ekins. Plaintiff's job was to place insulation above a suspended ceiling in a building which was under construction. Plaintiff's contention is that the portion of the ceiling on which he was working fell, injuring him, due to the negligence of the defendants. Defendant Tate and defendants MacDonald appeared by separate counsel and answered the complaint, denying their own negligence and pleading as affirmative defenses contributory negligence and assumption of risk. On April 12, 1960, the pretrial conference order was made, setting the action for trial on August 3, 1960. On plaintiff's motion the trial was continued to December 8, and again to March 29, 1961. There was a continuance to July 17, 1961, at the joint request of plaintiff and the MacDonalds, and then at the request of defendant Tate, to July 26 and November 29, 1961. It was continued to April 10, 1962, on motion of the MacDonalds, and to August 3, 1962, on motion of plaintiff.

On June 20, 1962, the court granted the motion of Tate for leave to amend his answer to include a fourth defense. By this new answer Tate alleged that the accident described in the complaint was proximately caused by the contributory negligence of plaintiff's employer, Ekins; that Ekins was insured under the Workmen's Compensation Laws with the California State Compensation Insurance Fund; that said fund had paid money for plaintiff's medical care and disability compensation as a result of this accident, and that any award of damages in favor of plaintiff against defendant Tate should be reduced by the amounts paid or to be paid in the future by the fund to and for plaintiff by reason of said accident and injuries.

Plaintiff demurred to this amendment to the answer on the grounds (1) that it failed to state a defense and (2) that it was barred by section 338, subdivision 1, of the Code of Civil Procedure (i. e., the three-year statute of limitations for an action upon a liability created by statute). On July 31, 1962, this demurrer was argued and submitted. On October 18, 1962, the respondent court made its order sustaining the demurrer. The grounds of the ruling are not disclosed in the record here.

On July 31, 1962, defendants MacDonald brought on for hearing their motion for leave to file an amended answer to raise the defense of the employer's negligence. This motion was also denied by the court on October 18, 1962.

On October 2 and 3, 1962, while the respondent court had the demurrer to Tate's answer and the MacDonalds' motion under submission, the defendants filed separate motions for leave to file cross-complaints. These proposed cross-complaints named the plaintiff's employer, Ekins, and his compensation carrier, the California State Compensation Insurance Fund, as cross-defendants. The allegations of the cross-complaints were substantially the same as the proposed affirmative defenses. The prayer of the cross-complaints was that the court reduce the amount of damages to which the plaintiff would otherwise be entitled by the amounts which have been and will be paid to plaintiff by cross-defendants under the Workmen's Compensation Act.

The two motions for leave to file cross-complaints were also denied on October 18, 1962.

On October 20, 1962, Tate and the MacDonalds petitioned this court for a writ of mandate to compel the trial court to set aside its rulings of October 18 and to allow the affirmative defenses and cross-complaints. Meanwhile, the trial date has again been postponed, first to await the ruling of the respondent court on the submitted motions, and now to await the disposition of this mandamus proceeding.

Under the Workmen's Compensation Act, although compensation is the employee's exclusive remedy against his employer (Lab.Code, § 3601), this does not affect the injured workman's right of action for damages against any person other than his employer. Labor Code, section 3852, confirms the right of the employee to recover damages against a third person, and also provides that any employer who pays compensation may likewise bring an action against such third person. Either the employer or the employee may join in such an action brought by the other, and if each sues independently the actions are required to be consolidated. (Lab.Code, § 3853). If the employee alone prosecutes the action against the third party, the employer may nevertheless recover what he has paid out by applying for a lien on the employee's judgment (Lab.Code, § 3856, subd. (b)).

Insurance Code, section 11662, provides that when an insurance carrier pays any compensation for which the employer is liable, the carrier is subrogated to the rights of the employer and may enforce such subrogated rights in its own name. The chapter of the Labor Code which provides for the employer's remedies against the third party tortfeasor defines 'employer' to include the insurer (§ 3850, subd. (b)). Thus it appears that the remedies open to the employer under this chapter of the Labor Code are likewise available to the insurance carrier acting in its own name.

The result is that the employer or the insurance carrier who has paid compensation to an injured employee may benefit from the action brought by the employee against the negligent third party whether the employer or carrier joins in the action or not. But the Labor Code gives no indication as to whether the employer's right of reimbursement is defeated when the injuries are caused by the concurring negligence of the employer and a third party.

Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641 (decided December 4, 1961), was an action brought by two Los Angeles police officers, Witt and Grossman, for bodily injuries sustained when their police car was struck by a vehicle owned and operated by defendant Jackson. The City of Los Angeles intervened in the action to recover for damages to its automobile and for Workmen's Compensation benefits and medical expenses paid to the plaintiffs. The jury returned a verdict in favor of defendants. On appeal the Supreme Court concluded that the judgment against Grossman should be reversed because of error in instructions, but the judgment against Witt should be affirmed, there being evidence that he was contributively negligent. Since the negligence of Witt was imputed to his employer, the city could not recover either for damage to its car or for compensation paid to Witt. The Supreme Court also concluded that the negligence of the employer barred any recovery of the amount which it had paid as compensation to Grossman.

The opinion called attention to the three ways in which an employer who pays compensation may recover the amount so expended against a negligent third party: by an independent action, by joining in the employee's action, or by claiming a lien on the employee's judgment. After a review of authorities, the opinion of the court declared (57 Cal.2d at p. 72, 17 Cal.Rptr. at p. 377, 366 P.2d at p. 649):

'Thus, whether an action is brought by the employer or the employee, the third party tortfeasor should be able to invoke the concurrent negligence of the employer to defeat its right to reimbursement, since, in either event, the action is brought for the benefit of the employer to the extent that compensation benefits have been paid to the employee.' (57 Cal.2d at 72, 17 Cal.Rptr. at 377, 366 P.2d at 649.)

Two appellate courts have since been required to consider the applicability of the Witt doctrine to pending cases. City of Sacramento v. Superior Court, 205 A.C.A. 455, 23 Cal.Rptr. 43, decided July 2, 1962, grew out of an action brought by Gerald Smith against the city for personal injuries allegedly sustained by reason of the negligence of a city employee on December 21, 1960. The action was filed February 21, 1961, and pretried in January 1962. On April 5, 1962, after the Witt decision had come down, defendants made a motion for leave to file a cross-complaint to join, as cross-defendants, Smith's employer and the employer's compensation carrier who had paid benefits to Smith. The theory of the motion was that Smith's employer had been guilty of negligence contributing to the accident and that this fact would...