Johnson v. L. D. S. Trucking Co.

California Court of Appeal Sep 20, 1967 No. Civ. 23267Published

Before: Shoemaker

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Holding. The court held that a trial court lacks authority to award attorney's fees to a plaintiff's attorney from an employer's share of a settlement when the employer was actively represented by its own counsel throughout the proceedings. Because the employer participated in the litigation and settlement negotiations, the settlement was not obtained solely through the efforts of the plaintiff's attorney.

Issues

Whether a trial court may impose attorney's fees upon an employer's share of a settlement when the employer was represented by its own counsel.
Whether Labor Code section 3860, subdivision (c) is unconstitutional as a violation of equal protection.

Disposition. reversed

Quotations verified verbatim against the opinion

“Why, when respondent had its own counsel, who competently represented it, should it have to pay plaintiff’s counsel? We cannot presume that respondent’s counsel were not paid, nor is that even suggested..Why should the employer-insurer pay twice?”

[497]

SHOEMAKER, P. J.

This is an appeal by Argonaut Insurance Company, a workmen’s compensation carrier, from an order awarding counsel for plaintiff attorney’s fees in the amount of $825, to be paid from the proceeds of a $4,960 settlement partially reimbursing Argonaut for workmen’s compensation benefits paid to plaintiff.

Plaintiff Johnson was injured on or about June 30, 1961, when a truck owned by the L.D.S. Trucking Company collided with a truck which plaintiff was operating in the course and scope of his employment by the Loomis Armored Car Service, Inc. Argonaut, the insurance compensation carrier for plaintiff’s employer, thereafter paid plaintiff $6,775.20 by way of benefits.

Plaintiff employed an attorney, John Quinn, to bring suit on his behalf against the L.D.S. Trucking Company, and Argonaut was so advised. Argonaut’s attorneys wrote Quinn on April 11, 1962, advising him that no settlement should be entered into without Argonaut’s concurrence, offered to assist Quinn in any way they could to further his efforts in pursuing the action against the parties responsible for plaintiff’s injury, and requested that Quinn send them a copy of the complaint when suit was filed.

Quinn filed suit against L.D.S. on June 28, 1962, and, on August 20, 1962, complied with the request by Argonaut’s attorneys and furnished them with a copy of the complaint. On March 4, 1963, L.D.S. was served with summons and complaint, and on June 10, 1963, Argonaut’s attorneys complied with a request by Quinn and furnished him with a copy of plaintiff’s compensation file. On September 4, 1963, Quinn notified Argonaut’s counsel of the taking of L.D.S.’ deposition, and on September 9, 1964, Argonaut’s attorneys advised Quinn of the total compensation benefits paid on plaintiff’s behalf as of March 25,1964.

On February 19, 1965, plaintiff’s deposition was taken and on February 25, 1965, pretrial of the action against L.D.S. was held. Argonaut was not represented at the deposition or pretrial conference, but the record contains no indication that Quinn had asked their counsel to attend.

Quinn had been in communication with L.D.S.’ insurer throughout the above-mentioned proceedings and had been attempting to effect a settlement. On April 15, 1965, said in

Johnson v. L. D. S. Trucking Co.

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SHOEMAKER, P. J.

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