Fidelity & Casualty Co. of New York v. McMurry

FORD, J.

This is an appeal by the plaintiff from" á judgment entered after the general demurrer of the defendant as administratrix to the complaint had been sustained without leave to amend on the ground that there was no allegation that a claim against the estate of Joe Leonard McMurry, deceased, had been filed or presented.

1

In the complaint, which was filed on June 30, 1961, it was alleged that the plaintiff was a corporation engaged in the business of insurance and authorized to do business in the State of California. It was further alleged that while Ernest Cotton was driving a truck for his employer on or about August 21, 1958, Joe Leonard McMurry “did so carelessly and negligently operate ... his said vehicle so as to cause the vehicle to . . . collide with the vehicle being operated” by Mr. Cotton. The plaintiff corporation, which was the workmen’s compensation insurance carrier for Mr. Cotton’s employer, “assumed the liability of said employer to said employee for all benefits payable to and on behalf of said employee for medical expenses and compensation benefits . ...” It was further alleged as follows: “That pursuant to the Workmen’s Compensation laws of the State of California, plaintiff has paid the sum of $2,208.69 for medical expenses in behalf of the said Ernest Cotton and has paid to, or become obligated to pay to the said Ernest Cotton the sum of $2,750.00 as compensation ; that the medical expenses for the said Ernest Cotton are continuing . . . .” While there was no direct allega

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tion as to the death of Mr. McMurry, it was alleged that Doris Louise McMurry had been appointed as the administratrix of his estate. It is conceded by the appellant that no claim against the estate with respect to the sums sought to be recovered had been filed or presented within the statutory period of time.

The plaintiff’s cause of action is based on section 3852 of the Labor Code. That section is as follows: ‘ ‘ The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, may likewise make a claim or bring an action against such third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he was liable including all salary, wage, pension, or other emolument paid to the employee or to his dependents.” As used in that section of the code, the term “employer” includes the insurance carrier for the employer. (Lab. Code, §§ 3850, 3211.)