Harvey v. Boysen

Opinion

Plaintiff Ethel Harvey commenced an action for damages for injuries sustained in the course of her employment by the County of Contra Costa, alleged to have been proximately caused by the negligence of defendant Edwin Boysen. The injuries had caused her to

An employee’s settlement with a third party tortfeasor is necessarily treated as a judgment in relation to sections 3852 and 3856, subdivision (b). (See Lab. Code, § 3860, subd. (b); R. E. Spriggs, Inc. v. Industrial Acc. Com., 42 Cal.2d 785 [ 269 P.2d 876 ]; San Bernardino County v. Indus. Acc. Com., 217 Cal. 618 , 625-628 [ 20 P.2d 673 ]; Smith v. Trapp, 249 Cal.App.2d 929 [ 58 Cal.Rptr. 229 ].)

The basic question presented to us is very simply stated. Do Labor Code sections 3852 and 3856, subdivision ; (b), in the factual context of this case, entitle the County of Contra Costa to a lien on the proceeds of plaintiff’s settlement?

It is proper, initially, to point out that plaintiff makes no contention thát negligence of the county contributed in any way to her injury and damages. We are therefore not concerned with the well-known rule of Witt v. Jackson, 57 Cal.2d 57 [ 17 Cal.Rptr. 369 , 366 P.2d 641 ], denying the employer any recovery in cases where his negligence proximgtely contributed to the injuries. (See Serrano v. Workmen’s Comp. Appeals Bd, 16 Cal.App.3d 787 , 790-792 [ 94 Cal.Rptr. 511 ]; Smith v. Trapp, supra, 249 Cal.App.2d 929 , 938-939.)

Labor Code section 3852 (and its predecessor statute, § 26 of the “workmen’s compensation, insurance and safety act of 1917” (Stats. 1917, ch. 586, p. 831)) is “a legislative recognition of the equitable doctrine of subrogation.” (Western States etc. Co. v. Bayside L. Co., 182 Cal. 140 , 148 [ 187 P. 735 ]; Smith v. County of Los Angeles, 276 Cal.App.2d 156 , 162 [ 81 Cal.Rptr. 120 ].) Where an employer is required to provide financial benefits to a workman because of disability brought about by a third party’s negligence, the statute assures that the

Section 3856, subdivision (b), as indicated, entitled the employer to a lien against his employee’s judgment, or settlement, in “the amount of the employer’s expenditure for compensation together with any amounts to which, he may be entitled as special damages under Section 3852.” (Italics added.) All benefits required to be paid by the employer, even though,- as here, in excess of those ordinarily enjoined by the Workmen’s Compensation Act, are deemed the “compensation” and “special damages” of section 3856, subdivision (b), and are subject to the employer’s hen. Thus, continued salary paid the workman during disability as required by ordinance (Hostetter v. City of Los Angeles, 241 Cal.App.2d 397 [ 50 Cal.Rptr. 526 ]; Hawthorn v. City of Beverly Hills, 111 Cal.App.2d 723 , 728-729 [ 245 P.2d 352 ]), or municipal charter (City etc. of San Francisco v. Workmen’s Comp. App. Bd., 2 Cal.3d 1001 , 1011 [ 88 Cal.Rptr. 371 , 472 P.2d 459 ]), or statute (Knopfer v. Flournoy, 34 Cal.App.3d 318 , 320-321 [ 109 Cal.Rptr. 892 ]; State Compensation Ins. Fund v. Workmen’s Comp. Appeals Bd., 26 Cal.App.3d 200 [ 103 Cal.Rptr. 29 ]), is subject to the employer’s lien. Such salary, for which the employee renders no services, is deemed to be “compensation” for which, under sections 3852 and 3856, subdivision (b), the employer is given the right of reimbursement. (Boyd v. City of Santa Ana, 6 Cal.3d 393 , 397 [ 99 Cal.Rptr. 38 , 491 P.2d 830 ]; Knopfer v. Flournoy, supra,

From the foregoing it will be seen that the salary paid plaintiff during her disability, by the County of Contra Costa, was in the nature of “compensation” paid, or “special damages,” for which the county was entitled to the lien of Labor Code sections 3852 and 3856, subdivision (b).

We have considered the several remaining contentions of plaintiff.

No merit is seen in the argument that the county waived, or should be estopped from asserting, its lien for failure to claim it in a timely manner. It has been held that the lien may timely be asserted any time before satisfaction of judgment (Jacobsen v. Industrial Acc. Com., 212 Cal. 440 , 448 [ 299 P. 66 ]); under this rule where the case is settled before judgment, as here, the lien may reasonably be applied for, as was done here, before consummation of the settlement. Further we observe that the county was not given written notice of plaintiff’s action as required by Labor Code section 3853; the contention that her superior’s actual knowledge that an action had been filed was the equivalent of such written notice is unpersuasive.

We are told by plaintiff in her briefs that the amount of the lien, $2,327.34, had been deposited with the clerk of the superior court pending the lien proceedings, and that following denial of the lien, but before the county’s notice of appeal, the clerk delivered the money to plaintiff. She contends that this circumstance constituted a waiver of the county’s right to appeal. The contention is invalid. It is only where the aggrieved party voluntarily does some act inconsistent with an intent to appeal that there is such a waiver. (See Reitano v. Yankwich, 38 Cal.2d 1 , 3 [ 237 P.2d 6 ]; Hellman Commercial T. & S. Bk. v. Alden, 206 Cal. 592 , 599 [ 275 P. 794 ].) And since we find no record whatever supporting the factual premises of the contention, for that reason also, the contention is found to be meritless. (See Kinney v. County of Contra Costa, 8 Cal.App.3d 761 , 771 [ 87 Cal.Rptr. 638 ].)

Nor is merit seen in the argument that “the county’s continuing pay is not in lieu of temporary disability benefits as required by statute.” As we

Payment to plaintiff of salary throughout her disability was not a “voluntary payment,” a situation which, it is contended, precludes the right to subrogation. The county’s ordinance mandated that she “shall continue to receive [her] full regular salary during any period of compensable temporary disability absence.” The salary payments were of the sort found subject to section 3852’s lien in Hostetter v. City of Los Angeles, supra, 241 Cal.App.2d 397 , and Hawthorn v. City of Beverly Hills, supra, 111 Cal.App.2d 723 . And we note that such benefits, even when voluntary, do not necessarily change their character as “compensation.” (City etc. of San Francisco v. Workmen’s Comp. App. Bd., supra, 2 Cal.3d 1001 , 1011.)

Nothing is seen in ordinance 36-8.1402 (see fn. 1, ante) which lends aid to the argument that by requiring return to the county of temporary disability payments, if any, from an insurance carrier, the county waived further subrogation rights under Labor Code section 3852. To make out such a waiver “there must be a clear, unequivocal, and decisive act of the party showing such purpose” (Newman v. Albert, 170 Cal.App.2d 678 , 685 [ 339 P.2d 588 ]); none is shown here. And since no intent to waive the subrogation rights of section 3852 may reasonably be inferred from the ordinance, the construction aid of expressio unius est exclusio alterius is here inapplicable. That rule is inapposite where it would not be consistent with the legislative intent. (In re Cathey, 55 Cal.2d 679 , 689 [ 12 Cal.Rptr. 762 , 361 P.2d 426 ]; Dickey v. Raisin Proration Zone No. 1, 24 Cal.2d 796 , 811 [ 151 P.2d 505 , 157 A.L.R. 324 ] [cert. den., 324 U.S. 869 ( 89 L.Ed. 1424 , 65 S.Ct. 1013 )]; People v. Hacker Emporium, Inc., 15 Cal.App.3d 474 , 477 [ 93 Cal.Rptr. 132 ].)

For the several reasons stated the order “denying the motion of the County of Contra Costa for the imposition of a lien upon the interest of the plaintiff” is reversed.

Molinari, P. J., and Sims, J., concurred.