Fireman's Fund Indemnity Co. v. Industrial Accident Commission

DRAPER, P. J.

Is a cempensation carrier entitled to credit for payments made to an injured employee by the employer’s liability insurance carrier under the motorist clause or a medical benefits provision?

The employer’s car, driven by employee Lillian Turci in the course and scope of her employment, was struck by an automobile driven by an uninsured motorist. Miss Turci was injured. The employer’s car was covered by a public liability policy issued by Continental Casualty Co. That policy the uninsured motorist coverage required by law (Ins. Code, § 11580.2). It also contained a “medical pay” provision covering cost of treatment of injuries by an occupant of the car. Continental paid Miss Turci the policy maximum coverages, $10,000 under the uninsured motorist provision, and $2,000 medical payments. Later, she was awarded $11,791.05 by respondent commission, plus repayment for self-procured medical treatment. Her compensation carrier’s request for credit for the amounts paid by Continental was denied. This petition followed and we issued writ of review.

An employer is entitled to a credit, against his for workmen’s compensation, for sums recovered by the employee for the same injury from a third-part tortfeasor (Lab. Code, § 3861). Our first question is whether the payment of $10,000 by Continental, under its uninsured motorist coverage, is to be deemed a recovery by the emplojme from a third-party tortfeasor. Continental was not the insurer of the tortfeasor who caused the collision. While its policy applied only if he were at fault, it also applied only if he were himself uninsured (Ins. Code, § 11850.2). The uninsured motorist statute is to protect one lawfully using

[678]

the highway by assuring him of payment of a minimum amount of an award to him for bodily injury caused by the actionable fault of another driver

(Taylor

v.

Preferred Risk Mut. Ins. Co.,

225 Cal.App.2d 80 [37 Cal.Rptr. 63]). But this does not make his insurer a surety in the statutory sense of one who agrees to answer for the debt, default or miscarriage of another (Civ. Code, § 2787). The insurer does not stand in the shoes of the uninsured tortfeasor