Branscum v. State Compensation Insurance Fund

CONLEY, P. J.

An appeal was taken by both sides from an order of the superior court striking from a previous order, pursuant to section 473 of the Code of Civil Procedure, an award of $369.58 costs as against the employer’s insurer, State Compensation Insurance Fund (hereinafter called the Fund), and failing to strike from the same previous order the attorneys’ fee awarded to counsel for the plaintiff.

The record shows that Coy H. Branscum, through his attorneys Lawrence W. Young and Robert L. Young, filed a complaint for personal injuries which had occurred during the course of his employment. He recovered a judgment from the defendant of $20,000, plus taxable costs of $285.35.

The record indicates that Lawrence W. Young, one of plaintiff’s attorneys, wrote twice to the Fund, during the course of the litigation, suggesting that it refrain from joining in the action to protect its subrogation lien, because, as he argued, such a move would detract from the plaintiff’s chances of recovery before a jury if the litigation resulted in a fight between a corporation defendant and an insurance company. Mr. Young then stated that he sought a fee from the Fund of one-third of the money collected. The Fund acceded to this point of view and promised to pay the Messrs. Young one-third of the money collected on its behalf. When the judgment on the verdict was entered, Mr. Young informed the Fund of that fact and told its representative that he would expect payment of the attorneys’ fee as previously agreed, and that he was also seeking costs. On or about April 10, 1964, he served the Fund with a notice of motion for attorneys’ fee and costs; a representative of the Fund in San Francisco immediately contacted Mr. Young, again agreeing to pay a fee to him of one-third of the amount collected for it. The Fund’s representative later stated in an affidavit that Mr.

[354]

Young promised to dismiss his motion for the attorneys’ fee and costs, and, as the result of that belief, the Fund did not appear at the hearing in Fresno on April 28,1964; Mr. Young averred in a counteraffidavit that he made no such promise.

The attorneys for the plaintiff filed a satisfaction of judgment on April 28,1964, establishing payment by the defendant of the principal sum awarded by the jury and the total taxable costs of $285.35. The attorneys for the plaintiff made their motion in accordance with the notice of motion. At that time, the court made an order allowing the attorneys’ fee to the Messrs. Young of one-third of the amount recovered on behalf of the Fund ($1,486.05), and also for monies advanced in the preparation of plaintiff’s case in the amount of $369.58. Mr. Young sent a check with deductions authorized by the court and a copy of the order to the Fund; its receipt on May 6, 1964, was the first notice that it received that a motion had actually been made and that the court had ordered the payment of said sums. Soon thereafter, the Fund filed, and served by mail, a notice of motion to set aside the order of April 29, 1964; a hearing was held on June 10, 1964, at which time as stated by the attorney for the Fund he attempted to return the cheek which had been received from Mr. Young. On the contrary, Mr. Young claimed that the check was never tendered to him. It was admitted that, upon the return of its attorney to San Francisco, the Fund deposited the check pending the termination of the matter. There is no showing that this was anything but an inadvertence; it could not possibly be considered an accord and satisfaction.