252 P. 605 | Cal. | 1926
The main question to be determined on this appeal is whether or not a lien for the amount of the compensation paid an injured employee by the insurance carrier of the employer, and allowed under the provision of section 26 of the Workmen's Compensation Act [Stats. 1917, p. 854], against a judgment for personal injuries recovered by the employee against the person causing the injuries, is assignable. *212
Milton Morris, a minor, the plaintiff, was run over by a truck operated by the defendant, Standard Oil Company, and seriously injured while in the course of his employment by the Chronicle Publishing Company of Calexico. He brought an action against the Oil Company for damages for personal injuries, and, after two appeals to this court, he was awarded the sum of $12,000. (Morris v. Standard Oil Co.,
Neither the employer of the boy nor its insurance carrier joined, or was joined, in the action for damages brought by him against the Oil Company, and neither instituted an independent action against that company because of the injury. The Ocean Accident and Guaranty Corporation, as such insurance carrier, having paid the employee compensation for which his employer was liable, was subrogated to all rights of the employer, and was entitled to enforce such rights in its own name. (Workmen's Compensation Act, sec. 30, subd. 2 [f].) It therefore petitioned for a lien against the judgment obtained by the employee against the Oil Company for the amount paid by it as compensation and the additional sum paid for medical and hospital treatment. The application was denied as to the latter items, but the insurance carrier was allowed a lien against the judgment for the sum of $800.64, paid as compensation, *213 upon the condition that it assigns to the employee any and all claims, demands, or causes of action it might have against the Oil Company for the amounts paid by it to the employee. No appeal was taken from this order allowing a conditional lien. The Oil Company, not having reimbursed the insurance company for the disability indemnity paid the employee, it complied with the order of the court and duly assigned its claim to him.
Thereafter, and while the second appeal in the action for damages hereinabove noted (
Appellant's first contention is that at the time its insurance carrier made the purported assignment to the employee it had no cause of action against the Oil Company. This contention is answered by the provision of the Workmen's Compensation Act (sec. 30, subd. 2 [f]) that, when an employer is insured against liability for compensation with an insurance carrier, and such carrier shall have paid any compensation for which the employer is liable, or furnished or provided any medical services required by the *214
act, such insurance carrier shall be subrogated to all the rights of the employer, and may enforce such rights in its own name. The Ocean Accident and Guaranty Corporation, therefore, had a cause of action arising by way of subrogation or equitable assignment. (Dibble v. San Joaquin L. P. Co.,
The action on the assignment was not barred by the statute of limitations. Being one based upon a liability created by statute, it was properly commenced within three years from the time the insurance company paid the disability indemnity to the injured employee.
The judgment is affirmed.
Richards, J., Sullivan, J., Curtis, J., Shenk, J., and Seawell, J., concurred. *215