Fairmont Insurance v. Frank

Opinion

RYLAARSDAM, J.

May plaintiff intervene in his workers’ compensation carrier’s action, which was filed separately, after his own action was dismissed for failure to diligently prosecute? We hold he may not.

Statement of Facts

Plaintiff and appellant Ronald K. Phelps (Phelps) was involved in a motor vehicle accident with Richard Frank (Frank) while in the course and scope of plaintiff’s employment. He received compensation for his injuries from Fairmont Insurance Company (Fairmont), his employer’s compensation carrier.

In January 1989, Fairmont filed a complaint for subrogation against Frank. Phelps filed a separate complaint for his personal injuries against Frank in June 1989. Phelps’s complaint against Frank was dismissed on November 5, 1992, for failure to prosecute. On November 12, Phelps filed a complaint in intervention in the Fairmont action pursuant to Labor Code

1

section 3853.

Frank demurred to the complaint and the demurrer was overruled. Frank subsequently filed a motion for summary judgment arguing Phelps could not

[459]

intervene in the workers’ compensation carrier’s action after his own personal injury action had been dismissed. The court granted the motion and Phelps appeals.

Discussion

Section 3853 provides: “If either the employee or the employer brings an action against such third person, ... the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.” The issue here is whether Phelps may intervene in Fairmont’s subrogation action after Phelps’s own personal injury action had been dismissed for failure to prosecute. The cases are in conflict on this topic.

The first case to address the issue was

Buell

v.