Quisenberry v. Rulison

DOOLING, J.

This is an appeal from an order made after final judgment denying the motion of appellant’s attorneys for counsel fees to be paid out of the portion of the judgment awarded to the compensation carrier of appellant’s employer pursuant to Labor Code, section 3856.

Plaintiff-appellant Quisenberry while in the course of his employment by Yellow Cab Company was injured by an automobile driven by defendant Rulison. On February 6, 1953, a verdict of $10,000 was awarded him for personal injuries against Rulison. Against this judgment respondent Pacific Indemnity Company had a lien of $2,690.31 for workmen’s compensation payments made to appellant.

An employer, or his compensation carrier, has a claim against a tort feasor who injures an employee, for the amount of compensation paid to the employee as a result of such tortious injury. (Lab. Code, § 3852.) This claim may be asserted either by the employer or his compensation carrier bringing an independent action (Lab. Code, §§ 3852, 3854), joining in an action brought by the employee (Lab. Code, § 3853) or abstaining from suit and claiming a lien against the judgment recovered by the employee (Lab. Code, § 3856).

(Burum

v.

State Comp. Ins. Fund,

30 Cal.2d 575, 580-581 [184 P.2d 505].)

In order to protect these rights Labor Code, section 3853, provides: “If either the employee or the employer brings an action against such third person, he shall forthwith give to the other written notice of the action, and of the name of the court in which the action is brought by personal service or registered mail. Proof of such service shall be filed in such action. If the action is brought by either the employer or employee, the other may, at any time before

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trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.” “ ‘Employer’ includes insurer as defined in this division.” (Lab. Code, § 3850, subd. (b).)

Thus the statutory duty was cast on appellant in this case to give written notice of the commencement of ■ his action against Rulison to the compensation carrier. This admittedly was never done. Instead on the next to the last day of the trial counsel for the appellant telephoned to an employee of the carrier and asked him (quoting from the affidavit of J. K. Kirby, claims superintendent of the carrier, filed in opposition to the motion for attorney’s fées) “to give him the total amount of expenditures made by the Pacific Indemnity Company in accordance with the terms of their Workmen’s Compensation policy so that he could introduce the same in evidence in said case; that said telephone conversation . . . was the first notice that Pacific Indemnity Company had received that said case was in litigation or actually proceeding to trial ...”