Fireman's Fund Indemnity Co. v. State Compensation Insurance Fund

WARD, J. This is a proceeding by plaintiff Fireman’s Fund Indemnity Company, a corporation, instituted under the doctrine of equitable subrogation, although defendant State Compensation Insurance Fund, a California state agency, assumes and argues that plaintiff is asking for contribution and that the rights and liabilities of the parties are governed by Civil Code, sections 1427 to 1432, defining and interpreting joint and several obligations. The court directed that judgment be entered in favor of plaintiff.

Prior to filing the amended complaint, the California Industrial Accident Commission, upon proceedings instituted by Ruth C. Smith, widow and sole dependent of Joseph Jay Smith, made an award in favor of the widow against plaintiff and the defendant, jointly and severally, as insurance carriers of Moore Dry Dock Company and Joe Gerrick & Company, respectively. (See Cal. Lab. Code, div. IV.)

The facts, as to which there is no dispute, are that on March 7, 1943, Joseph Jay Smith, while employed at Oakland “by Joe Gerrick & Company as general employer and by Moore Dry Dock Company as special employer,” was killed, as the evidence shows, in the course of said general and special employment. Smith was a member of the crew of a truck crane hired by Moore from Gerrick at an hourly rate, which rate included the rental of equipment, cost of operation, wages of the crew, the social security and unemployment benefit charges payable to government agencies, and the full workmen’s compensation insurance premium charge upon the wages of the crew. The widow recovered benefits of $6,150 against the carriers, jointly and severally. Neither party sought a review of the award. Each carrier paid one-half of the award, in installments, as ordered by the Industrial Accident Commission. Prior to the date of filing this proceeding the entire award had not been paid, but before the entry of judgment in the present case the award had been fully paid, plaintiff’s part of which was $3,075.

[410]Defendant in its argument submits that parties to a joint and several obligation may be liable only from a contract or by operation of law (Civ. Code, § 1428), that the only right of action’by plaintiff must be based upon an obligation arising through operation of law from the award of the Industrial Accident Commission, and that plaintiff is entitled to recover only such amount as plaintiff may have paid in excess of the amount contributed by defendant. In addition to its claim of equality of liability it is defendant’s position that the action and award of the Industrial Accident Commission constituted an adjudication which may not subsequently be disturbed.