Pacific Employers Insurance v. Hartford Steam Boiler Inspection & Insurance

BURCH, J. pro tem.* Plaintiff, Pacific Employers Insurance Company, a corporation, is the insurance carrier for Quality Industries, Inc., whose employee came to his death by reason of the explosion of a boiler in the employer’s laundry business. It has been established that the negligence of the defendant, Hartford Steam Boiler Inspection and Insurance Company, a corporation, was the proximate cause of the injuries and resulting death of the employee.

The widow and minor children of the deceased employee obtained a judgment of $18,500 against the defendant in a wrongful death action instituted by them under section 377 of the Code of Civil Procedure. The damages sought and recovered in that action were for loss of consortium and support. The plaintiff actively assisted the heirs in that action and was fully informed of the proceedings had therein. The plaintiff had disbursed to the plaintiffs therein the sum of $3,220 by way of death benefits, and the court made an order allocating out of the judgment to the plaintiff the said amount. The court found at the same time that the plaintiff had paid, in addition, hospital and medical bills in the sum of $3,874.42 and reasonable burial expenses in the amount of $400 “which latter two sums these plaintiffs will not reimburse to said Workmen’s Compensation carrier.’’ The present action was thereupon instituted to recover those two sums. The trial judge, who also presided in the other action, rendered judgment for plaintiff. A finding was made with reference to the death action that: “Plaintiff claimed its lien against the judgment therein to the extent of $3220 which sum plaintiff had paid as death benefits to the said heirs who were plaintiffs in said action’’ and plaintiffs accepted same with “full and complete knowledge’’ of the fact that the action had been filed, tried and adjudicated but filed no lien for the medical-hospital bills and the burial expense. Judgment went for plaintiff, and defendant urges that the above facts are fatal to recovery because plaintiff has made its election to pursue [648]its judgment lien right (Lab. Code, §§ 3856-3860); that plaintiff has neglected to join as party plaintiff in the heirs’ action (Lab. Code, § 3853), or to bring a separate action which might have been consolidated with the heirs’ action (Lab. Code, § 3852); that having failed to exercise its full rights under any of these statutory remedies, the plaintiff is now estopped.

It is conceded in this case that the heirs of the employee had their right of action against the defendant by reason of section 337 of the Code of Civil Procedure. The damages redressed to them in that action are for loss of support and consortium. Nothing was or could be recovered therein by them for medical and hospital bills (Gallup V. Sparks-Mundo Engineering Co., 43 Cal.2d 1, 10, 11, 12 [271 P.2d 34]). The allowance of a lien to the employer’s insurance carrier for death benefits paid diminished the carrier’s claim under section 3852 of the Labor Code, pro tanto, against the tort feasor, and mitigated the damages which the section authorizes plaintiff to recover. Of importance to the wrongdoer is that he not be subjected to double liability for the same wrong by reason of the several causes of action which may arise under the act and the general law. (Eckman v. Arnold Taxi Co., 64 Cal.App.2d 229 [148 P.2d 667].) No double liability results in the circumstances present here. The tort is redressed but once by construing the codified act (Lab. Code, §§ 3850-3862) as the court below has construed it in regard to the wrongful death action.