Soliz v. Spielman

Opinion

KINGSLEY, J.

On November 2, 1968, Soliz was injured while in the employ of a company for which Home was the workmen’s compensation carrier. As a result of that accident, Home paid benefits to Soliz in the amount of $26,831.22.

On November 6, 1968, Soliz retained defendants Spielman, Ghitterman and Steele (hereinafter “the attorneys”) to bring an action against third parties alleged to have been the cause of the industrial injury. The attorneys allowed the statute of limitations to run on that cause of action.

On May 27, 1970, Soliz brought suit against the attorneys for

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malpractice. Thereafter Home filed a complaint in intervention in the malpractice suit and also filed therein a notice of lien claim. After the malpractice suit had progressed for two days, Soliz, without the knowledge or consent of Home, settled the malpractice action. The trial court then granted the attorneys judgment on the pleadings and struck Home’s notice of lien. This appeal followed.

1

The present appeal presents a question on which there is no square authority. It is admitted that, had the attorneys duly filed and prosecuted the proposed action against the third parties and recovered a judgment therein in Soliz’ favor, Home, either by complaint in intervention or by notice of lien, in

that

action would (unless the employer were contributorily negligent) have had a right of reimbursement for its compensation payments. The question before us is whether the attorneys, by preventing the personal injury action from proceeding, have become liable to Home. We conclude that they did not.

In chapter 5, part 1, division 4 (Lab. Code, §§ 3850-3864),

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the Legislature has set forth an elaborate system for protecting the rights of an employer (or its carrier) to share in any recovery against a third party tortfeasor, so as to prevent a double recovery by the injured employee. Under section 3852, either the employee or the employer may bring an action against the third party. Whichever sues must notify the other; if both sue the actions may be consolidated. If the employee sues, the employer may, at its option, either intervene in the employee’s action or, under section 3856, claim a lien on the employee’s judgment.