Shook v. Jacuzzi

Opinion

DRAPER, P. J.

This appeal represents but one more unsuccessful effort to evade the clear statutory provisions which make workers’ compensation procedures the sole remedy of an employee against his employer in industrial injury cases.

Both plaintiffs were employed by defendant International Manufacturing Company, whose president, Jacuzzi, is joined as a defendant. Each complaint alleges that plaintiff, acting in the course and scope of his employment, was injured while operating a machine used by International in its manufacture of automobile wheels. Each claimed and

[980]

recovered compensation through the Workers’ Compensation Appeals Board. Each alleges that the machine was. defectively designed and manufactured by International, Jacuzzi, and a third party, defendant Harmsworth, who is not a party to this appeal. It is not disputed that International’s part in the design and manufacture was solely for the purpose of its own use in its own manufacturing process, and that it never set up a separate unit for that purpose, nor sold any such machine. Summary judgment was granted to defendants International and Jacuzzi. Plaintiffs appeal.

It is undisputed that the “conditions of compensation” (Lab. Code, §§ 3600, 3601) concurred at the time of the employees’ injuries insofar as International’s wheel manufacturing business is concerned. In such a case, liability for workers’ compensation exists “in lieu of any other liability whatsoever to any person” (§ 3600), and “the right to recover such compensation . . . is . . . the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment,” with exceptions not applicable here (§ 3601).

Appellants, however, argue that International acted in a “dual capacity” and that as designer-manufacturer of the device it is separately liable

(Duprey

v.

Shane,

39 Cal.2d 781 [249 P.2d 8]). That case, however, is readily distinguishable. Ms. Duprey, a nurse employed by Dr. Shane, a chiropractor, was injured in the course of her employment. Dr. Shane, individually and through another chiropractor in his employ, thereafter undertook to treat her for that injury. The treatment was negligent, and she was allowed to recover for those distinct injuries in a malpractice action. In undertaking to treat the injured nurse, Dr. Shane assumed a role distinct in both time and nature from that of employer. Attempts to extend the rule of