City of Los Angeles v. Aldrich

ROTH, P. J.

An employee of appellant City of Los Angeles (City) was injured during the course of his employment allegedly by the negligence of respondent Anna Marie Aldrich on September 27, 1960. City filed a complaint on March 27, 1962, praying for the amount of compensation and medical expenses which it alleges it was compelled to and did pay to its employee as a consequence of said injury. City also prayed for property damages suffered as a result of respondent’s alleged negligence.

Bespondent haYing raised the defense of the statute of limitations, that issue was tried first. (Code Civ. Proc., § 597.) Judgment was entered for respondent. The findings and conclusions of the court indicate that the claim for property damage was withdrawn from the case.

The sole question on appeal is whether an action by an employer against a third party for losses incurred by payment of compensation and medical expenses to an injured employee under Division 4 of the Labor Code, is governed by the one-year statute of limitations of Code of Civil Procedure, section 340, subdivision 3, or the three-year statute of Code of Civil Procedure, section 338, subdivision 1.

Section 340, subdivision 3 provides for a one-year period of limitations in actions “for injury to . . . one caused by the wrongful act or neglect of another. . . .’’ Section 338, subdivision 1, on the other hand, provides for a three-year period in actions “upon a liability created by statute. . . .’’ The cause at bench, based on the right to sue third party tortfeasors given the employer in Labor Code, section 3852,

1

is based on both a statutory liability and injury caused by the neglect of another.

City admits that this question was decided adversely to its position in

Liberty Mutual Insurance Co.

v.

Fabian,

228 Cal.App.2d 427 [39 Cal.Rptr. 570] (Hearing denied September 10, 1964) which applied the one-year period of limitations. It argues, however, that the

Fabian

case is based on erroneous

[308]