*1 No. In 23146. Bank. Sept. [S.F. 1975.] Appellant, QUINN,
THOMAS Plaintiff and v. CALIFORNIA, THE STATE OF and Respondent; Defendant AMERICA, INSURANCE COMPANY OF NORTH Claimant Respondent.
Counsel Boccardo, Blum, Lull, Niland, Bell, Teerlink & Edward J. Niland and Ibler, Jr., A. for Plaintiff and Stanley Appellant. Pollock,
Robert E. I. Edward H. I. William Cartwright, Lally, Stephen Beloud, G. Robert David B. Baum and Leonard Sacks Zetterberg, Amici Curiae on behalf of and Plaintiff Appellant. Erich & Brown and John R. Ball for Defendant and
Hardy, Respondent and for and Claimant Respondent. General,
Evelle Palmer, J. Elizabeth Assistant Younger, Attorney General, Hill, N. Edmund E. White and Richard M. Attorney Eugene Skinner as Amici Curiae on behalf of and Defendant and Respondent Claimant and Respondent.
Opinion TOBRINER, J. Under theworkers’ statutes1 a worker not sue his for a work-related but he recover may employer may injury, from a third for such an From (§ 3852.) judgment negligent injury. party who his paid employee compensation benefits the amount thus We must now (§ may recoup expended. construe that of section which the trial court portion requires Code, noted, 1Labor section 3200 et Unless otherwise all code seq. subsequent citations will refer Labor Code. section, suit, (b) 2The subdivision of which has rise to this reads in its given entirety: “In the suit event of such third party: and this to in such case as determine before reimbursing fee,”3 a fee “a based order reasonable “upon payment both rendered recoveiy services attorney effecting employee’s We face here the benefit employer.” an active whether this statute incorporates question of his (here worker) beneficiary litigant may require passive for the toward efforts contribute (here payment employer) which services of recovery. litigant’s attorney produced alone, “(a) court order If the action is shall first paid prosecuted by the. incurred recovered reasonable litigation any judgment damages expenses action, fee a reasonable attorney’s of such with preparation which prosecution together the services rendered shall be based solely upon *4 After the of the and the both for the benefit employee. effecting recovery employer fees, of out the amount such and the court shall apply payment expenses his for the amount of an amount to reimburse the such sufficient employer judgment which he entitled with amounts to be any may for together expenditure compensation the and shall excess paid injured under section 3852 order any special damages other thereto. or entitled person employee alone, court order “(b) paid is the the shall first If the action by employee prosecuted incurred in the from for recovered reasonable litigation expenses any judgment damages action, fee a reasonable attorney’s and of such with preparation which prosecution together in the attorney shall be based the services rendered solely by employee’s upon the the and the After both for the benefit of effecting recovery employee employer. shall, on such fee the court and payment expenses a first such allow as lien amount of for judgment damages, employer, against for with amounts to amount of employer’s compensation together any expenditure which he entitled as 3852. be under Section damages special “(c) If the action is in a single both prosecuted by employer, employee actions, action in consolidated and are the same attorney they by agreed represented or recovered, first for by dámages the court shall order attorneys, any judgment separate paid the reasonable and incurred expenses preparation prosecution litigation actions, such action or with reasonable fees based on solely together attorneys’ the same services rendered for the benefit of both where are represented by parties they where and are based they by attorneys, solely upon attorney, represented separate service in each the benefit of rendered instance for effecting by court After the of such and fees the party represented. payment expenses attorneys’ an shall out of the amount sufficient amount of such for judgment damages apply of his for reimburse for the amount together expenditures compensation with be under Section other amounts to which he entitled as may damages any special 3852. “(d) amount of and the amount of attorneys’ reasonable litigation expenses (b) (a), (c) under fixed the court. Where by subdivisions section shall be are by separate attorneys they may propose represented court, determination, and division of such for its consideration and the amount expenses and fees.” as an element to be 3Section 3856 refers “reasonable additional litigation expenses” have the issue of deducted from In briefs and stressed argument parties recovery. fees, size, but no good because of their more substantial probably usually costs to attorney’s reason for the other reference litigation; by appears distinguishing fees, therefore, well we shall in this include as the other litigation henceforth opinion mentioned 3856. section expenses detail, As we shall show in more our conclusion that the should bear his share of such fees rests upon equitable principle the courts and long applied by upon Legislature’s of such into section 3856. The facts of this case incorporation serve to illustrate the reasons for the enactment.
Plaintiff sustained serious in the course of his work on a injuries dam; for the construction of a he received project workers’ consequently $13,942. benefits state, Plaintiff sued the compensation which owned site, the construction its as the cause of his alleging negligence proximate 3852; Torts, 2d Rest. (§ On injuries. the first of trial § day insurance carrier which had the workers’ benefits paid compensation filed a lien to section 3856 pursuant any judgment might result. The carrier did not otherwise on participate litigation behalf of the plaintiff.
After a trial received a verdict and jury plaintiff $91,314.99; the trial court denied defendant’s motion for a new trial and the verdict. Defendant’s insurer judgment notwithstanding liability (which chance had also written the workers’ $80,231.06, sent a draft for policy)4 amount reached plaintiff *5 from the and interest the full deducting amount of statutory the workers’ benefits to that compensation his paid plaintiff. Urging had all the work performed leading recovery, plaintiff (cid:127)then moved for an order his fee between himself apportioning and his Denial of that motion led to employer.5 this appeal. 1. The relevant statutes are based upon principles apportionment long our courts.
applied by
A brief sketch of the
to workers’
policy
employers’ subrogation
recoveries in third
actions and of the
party negligence
legislation
4The circumstance that the same insurer had written both the employer’s workers’
and the state’s
compensation
liability policies
but in
simplified
no
bookkeeping
way
course,
changed
of the case.
legal significance
Normally,
insurer would
liability
issue one check to the
workers’
subrogated
carrier in
compensation
of its
recognition
lien, and another
to the worker or his
Here that
was
attorney.
process
merely
insurer,
short-circuited because the state’s
rather
liability
than
check
a
to itself as
writing
carrier,
workers’
compensation
deducted the same
simply
amount from
the check it issued.
America,
5Insurance
of North
Company
which had intervened as the employer’s
workers’
carrier
to
compensation
from the
seeking
recoup
judgment any previously paid
benefits,
workers’
is the
which
compensation
party
would be
affected
directly
by any
order of
For the sake of convenience
apportionment.
we shall henceforth
clarity
include the
workers’
subrogated
carrier in
reference to the
compensation
any
employer.
case
will
instant
that
illuminate
problem
implementing
policy
of it.
resolution
Legislature’s
statutes, the
has
the earliest workers’
From
compensation
which
shift
financial burdens
an
to
afforded employers
opportunity
has
under
statutes to third
whose
incur
those
negligence
they
parties
has
end the
enacted
caused the
To this
injuries
question.
to
statutes which
series of
give
right
subrogation
of workers’
recover
his
(measured
outlay
damages
compensation
third
who are
benefits)
strangers
employment
parties
in the course
Thus an
whose worker has been
relation.6
injured
from
of a. third
recover
his
may
employment by
party
the^negligence
worker in workers’
amount
compensation
party
paid
3852;
Moreover,
his
if the worker exercises
own
benefits.
3854.)
(§§
right
entitled to claim
third
stands
sue
negligent
party,
of the workers’
from
actual
amount
any
repayment
we must
3856.) The
benefits
(§
question
already paid.
courts’
as
framed affects the
historical
decide is whether this statute
now
those who are
attorneys’
among
equity practice
apportioning
situated
created
the activities of
beneficiaries
funds
similarly
Fees
Clients:
Attorney
(Dawson,
Involuntary
litigants.
Lawyers
87 Harv.L.Rev.
Funds
have
courts,
American
in contrast to those
England,
Although
costs,7
at least
never awarded counsels’ fees
a routine component
rule
one
as well established as
this rule
become
exception
which
suit
itself: that one who
fees in
winning
expends
benefits,
those
creates a fund from which
derive
others
may require
costs.8
bear a fair share of the
beneficiaries
*6
litigation
passive
a
this rule and its
Articulating
underlying
exception,
policies
that
noted
scholar of the
of
enrichment
prominent
unjust
problems
854;
471,
8,
1917,
586,
26,
1919,
section
6Statutes
section
chapter
chapter
page
page
2370;
1119,
1,
920; 1927,
702,
1,
1213; 1931,
section
section
chapter
page
chapter
page
1939,
902,
2,
2519; 1970,
1937,
90,
273-275;
section
pages
page
chapter
chapter
chapter
242,
2,
section
502.
page
7Goodhart,
(1929) Yale L.J.
Costs
38
849.
1184,
777];
59 S.Ct.
Central
(1939)
Ticonic
307
161
L.Ed.
v.
U.S.
8Sprague
[83
Bank
915,
387];
5 S.Ct.
Trustees
(1885)
116
Railroad &
Co. v. Pettus
113 U.S.
L.Ed.
Banking
[28
669,
(1948) 31
(1881)
1157]; Estate
Reade
Cal.2d
v.
While American courts have entertained serious doubts as to the wisdom of rule in its “it seems clear that adopting English entirety, no is undermined where policy recovery allowing [of fees] the claim for reimbursement can be deflected toward a stranger—where own, a on a cause of action of his has succeeded and it litigant, suing then that his success has ensured He appears gains nonparty strangers. will be denied from his of his loss recovery opponent out-of-pocket fees, counsel even it was his resistance that caused though opponent’s loss, this because of the deterrent effect on if mainly litigation generally all of its real costs were shifted to But losers. such is regularly reasoning outsider, irrelevant to a claim entirely complete recapture some of the windfall to him.” (Dawson, 1600-1601.) part supra, pp,
California courts have this long applied apportionment.9 In Estate Cal.2d (1959) 53 one 748], many of Stauffer use, cases its we summarized some of the considerations exemplifying behind the “The bases of the rule which principle: equitable permits a common fund with the of its or surcharging expenses protection fees, counsel to be these: fairness to the recovery, including appear successful who otherwise receive no benefits because his litigant, might be consumed correlative recovery might expenses; prevention an unfair to the others who are entitled to share in the fund advantage and who should bear their share of the burden of its recovery; ;the successful who will be encouragement litigant, more to undertake and willing diligently prosecute proper litigation of the fund if he is assured he will protection be should his efforts be promptly successful.” directly compensated (53 Cal.2d at p.
The instant case therefore well constitute an might appropriate situation for the of the rule of even without apportionment, has, reference to the statute. An active litigant by bringing winning lawsuit, created a fund which upon nonparticipant litigation *7 can draw in order to relieve himself of a he would legal obligation bear;10 otherwise the thus benefits from passive beneficiary necessarily 9Representative California cases in footnote ante. appear 10Wewould in a confusion the defendant’s characteriza dispel passing engendered by tion of himself as a mere lien While the uses this term to describe creditor. statute the neither in The has contributed efforts suit. employer plaintiff’s bringing action; effort, time, he thus seeks to nor to the now-successful money Further- the of the suit without to its costs. benefits enjoy contributing more, referred to this we that the has out below clearly point in the statute before us. general equitable precept
2. 3856 the The into section Legislature incorporated apportionment of fees.
All that the to the statute parties agree predecessor present required the courts to active fees between the worker (the apportion attorney’s and the of his This action). (the litigant) employer passive beneficiaiy read, statute in relevant “where the predecessor part: employer failed to in said the action third be join [against negligent party] therein his own the has not where represented by attorney, made with him in the arrangements employee’s attorney represent action, said the court fix a which shall be shall reasonable attorney’s fee, to be fixed as a share of the amount received the actually employer, him in on account the service rendered by paid employee’s attorney the the which said fee shall be recovery employer, effecting benefit of 1949, ch. (Stats. deducted from due the amounts any employer.” 355-356; added.) italics § pp. however, unclear,
The left as between statute rights priority should not worker’s in case the recovery attorney suffice both for his and to compensate recompense workers’ To the Legislature compensation outlay. remedy obscurity statute, which, enacted the current with an evident eye problem that “the court shall order conflicting priorities, paid specifies first fee. The then on to statute any judgment” goes repeat, terms, similar statute: substantially language emphasized the court is to order the “n which reasonable attorney’s payment fee shall based be the services rendered solely employee’s attorney upon ” both recovery employer. effecting benefit of 3856, subd. italics (§ (b); added.) thus into its statute equitable incorporated above; doctrine described it beneficiary required passive worker, the words “lien creditor” are actual employer’s rights any recovery by creditor; for unlike the here usual lien misleading, rights depend entirely lose, the worker’s “lien” success in his suit. Should he upon this evaporates; third-party renders this identical to the usual “common fund" contingency virtually .case situation. *8 contribute of that fund in expenses litigation creating to his benefit therefrom. of the same as much proportion language Using statute, the 1949 then refined and extended its intention Legislature that the contribute his reasonable share toward the attorney’s fee of the worker In whose efforts benefit the the present employer. continues its mandate the courts to statute apportion reasonable fees on basis of benefit to the respective parties, while the worker that he can obtain an assuring attorney by guaranteeing in the that the recovered should attorney priority event not suffice both to him and to claim. recompense satisfy
The statute as now framed commands the court to establish “reasonable fee” into account “the services rendered taking both for the benefit of Such employer.” language, far from of the forbidding equitable principle reasonable it. Witt v. Jackson (Cf. apportionment, requires Cal.2d 366 P.2d Both the directive to 641].) [17 Cal.Rptr. assess a reasonable fee and the mandate to consider the to both benefit active and beneficiaries of the call for passive apportionment. Moreover, this consideration of finds statute language support canons of construction to workers’ general applicable compensa- tion legislation. set forth the construc- governing statutory 3202;
tion in section which instructs the courts to construe the entire Workers’ Act “with the their Compensation purpose extending benefits for the of their the course protection persons injured This clause the courts to view employment.” requires legislation worker, with the injured standpoint objective securing him the maximum benefits to which he is entitled.
Thus, the worker well stand entitled in a case in which might toward his fee absent contribution any statutory provision, court cannot a statute which on its face calls for weighing interpret burdens, Such an benefits and fees. barring apportionment intent that we would violate liberally interpretation construe workers’ statutes to the worker’s benefit.
Indeed, of fees the statute as to construe forbidding apportionment announced in section would raise of conflict with policy questions from a which makes it a misdemeanor for an employer require worker “either to cover cost contribution indirectly” any directly *9 benefits is the costs of benefits. One of of compensation compensation third whose the cost of negligence against parties recovering judgments To construe benefits. the of those necessitated compensation payment assist in demand that the courts 3856 as a section precisely legislative intent the is therefore to such an enforced contribution negate legislative section 3751. underlying the the the words of statute into equity precepts
By incorporating to his actively litigating beneficiary recompense passive requiring our courts to benefactor, the has directed apportion Legislature is a this result benefits; the intended relation Legislature fully the of the statute in conclusion which history question. emerges the intent 3. The statutes Legislature history. confirms attorneys’ apportionment require fees. Until 1947 neither the nor the courts had considered Legislature the worker and his of fees between question apportionment a third who share in a fund created a suit party; however, arise, its clear when the issue did manifested intention that courts should fees in such cases. apportion the 1939 version of the statute in we faced for
Construing
question,
first time in Dodds v. Stellar
pp. Moreover, the court in Dodds in effect instructed if it wished to draft a statute like one provide equitable present Dodds held that the statute then written expressed apportionment. the trial court intent not to because it apportion required first take care of claims and thereafter to satisfy only . . .
worker arid his “In view of these attorney: express provisions favor of that . . . the statutory emphasizing recoupment right consideration, no basis or its insurance carrier there is first for . . . between the apportioning litigation expenses parties benefiting Stellar, 496, 505; from the v. 30 Cal.2d (italics (Dodds recovery.” supra, *10 in the added.) Following suggestions implicit just quoted, passage fee, first for the worker’s has written in Legislature, attorney’s providing the statute the Dodds court indicated would in manner precisely we must effect to intent to enact give express legislative apportionment; Moreover, events this clear of the will. expression legislative subsequent intent to Dodds make clear the steadfastness of Legislature’s apportion.
Five after asked us to the doctrine Dodds years litigants apply In settlements. to the situation out-of-court apportionment analogous R. E. Inc. v. Industrial Acc. Com. Cal.2d Spriggs, for in this court held that the 876], Legislature’s provision apportionment did not warrant the cases which was application pronounced of that Once more the cases settled before judgment. principle its enacted to the it Legislature contrary; promptly legislation expressed Carter, for the views of who in dissent had Justice preference again of the traditional doctrines to cases in urged equitable 615, 1, which settlements had been reached. ch. (Stats. § p. In 1959 the recodified the statutes and for the Legislature provided fees in cases in which the did not priority recovery satisfy both the claim for a of an reasonable fee recoupment workers’ arises employer’s compensation payments; present litigation the new from this recodification. Defendant that because statute argues enactment, and reworded the former which had clearly compressed we that should assume provided apportionment, Legislature meant to obliterate the that it had twice invoked in procedure A decade. both of the history reading legislative previous statute, however, words of the points contrary.
First, above, as we have shown used significant verbatim, thus reference to of the former statute inviting portions Second, shown, we have statute former rewriting interpretation. that the. in Dodds: by placing Legislature carefully-observed ruling the worker’s it fee in the claims first against Stellar, of fees. Dodds v. could effect (See supra, equitable 496, Third, unrelated to the 30 Cal.2d other 504-505.) purposes, fees, that the did the other changes ápportionment explain It had two make. The 1959 such sought evidently goals. legislation the amount with which the to effect an primarily equitable adjustment would future benefit awards.11 As we have be credited it increase the intended to incentive attorneys secondarily explained, cases that the workers’ them by assuring recoupment press woúld not them for their efforts in the case. deny recompense litigating Thus we find for the both an consistent alternative entirely explanation and an that the indication retained changes wording courts were still to apply apportionment.
This obtains additional from the circumstance interpretation support commentators with leading legislative writing contemporaneously *11 no hint that the passage legislation gave Legislature repealed annual, the mandate to Both the of fees. apportion attorneys’ summary the Committee on Education of the legislation by prepared Continuing Bar,12 and Witkin’s of California Law13 treated the amend- Summary technical, ments as a conclusion accord with the essentially entirely routine and un contested of the bills Such passage Legislature.14 construction of course shed on contemporaneous may important light 339, intent. Nat. Bank (First v. Kinslow 8 Cal.2d P.2d 796].) defendant, of we shall show do not
Turning arguments they suffice to establish that fees conflicts with apportionment attorneys’ or with their in section equitable principles legislative incorporation 3856. 4. Neither the contention that consti- apportionment attorneys’
tutes “double nor the based inaction recovery” argument upon legislative establishes that the did not intend to such require apportion- ment.
We shall first answer the contention of the amicus his fees constitutes “double apportionment recovery” that such employee. employer apparently argues apportionment conflicts with the for the sources policy against recovery multiple 11The future amount system crediting, awards offsetting which worker recovers from a third actually is set out in sections 3858 party, 3861. See footnote infra. 12 34 (1959). State Bar J. 708-709 Witkin,
13 2 (7th of California Law 525. Summary ed. section Supp.) page 14The Journal of the Session 1959 notes that the bill was Assembly, Regular passed Calendar,” of the “Consent a which have no part uncontroversial bills category (Handbook, 416-417.) Cal. opposition. pp.
same for that a federal case damages,15 citing proposition construing different statute.16 While the exact which the meaning employer assigns to the term briefs, “double not does from the the two recovery” emerge constructions of this cannot stand because either possible argument they dissolve into fiction or a central of the situation—the ignore aspect contingency recovery. hand,
On the one that if one makes employer apparently suggests reduction in benefits, any employer’s recoupment previously paid the claimant receives to that extent awards—one from the overlapping tort claim and the other from workers’ Yet this compensation. argument the central fact of this case: the claimant owes ignores legal fees, very fees to be Thus in the case the for some apportioned. present $90,000 was to claims not for reimbursement of subject only compensa- tion $13,000 benefits of some but also to the "fees which legal plaintiff that his share. The seems to urges conjure up situation in which an fee exists for the exclusively purpose but does not affect the worker’s This recovery. aspect *12 of “double thus dissolves problem examination into recovery” upon a fiction.
. The alternative of the “double reading recovery” argument appears rest on the assertion that the contribution toward fees serves to attorneys’ increase the total workers’ benefits received the worker. compensation This however, contention from a basic proceeds, misconception. sure,
To be our will increase the tort interpretation plaintiff’s present benefits, decrease the recovery but to employer’s recoupment past characterize this result as an increase in benefits is to compensation The fact that the must some ignore his reality. pay portion to the worker aas share of the fee does not make recoupment attorney’s additional workers’ payment compensation: employer’s payment does not fulfill statute; his under it obligation for his services. recompenses Jackson, 15In of his amicus cites support argument, Witt v. 57 Cal.2d employer’s supra,
57;
v. Workmen’s
22
Corley
(1971)
Bd.
447
Comp. Appeals
Cal.App.3d
Cal.Rptr.
[99
242]
(overruled
884,
v.
Roe Workmen’s
Bd.
12
Comp.
Cal.3d
Appeals
[117
683,
771]);
528 P.2d
Cal.Rptr.
Sanstad v. Industrial Acc. Com.
171 Cal.App.2d
943],
Each of these cases
[339
concerns the
double
in the event
potential
that the benefits themselves were not
none deals with
fees as such.
recouped;
1963)
16Petition
(N.D.Cal.
Tankers
Shejfield
constru
Corporation
F.Supp.
33 United States Code
ing
section 933
& Harbor Worker’s
(Longshoremen’s
Compensa
Act).
tion
in face of
contention,
inaction
that
second
legislative
fees
of attorneys’
decisions
court
invalidating apportionment
allegedly
on two counts.
fails
of these rulings
demonstrates
approval
legislative
on the
never
First,
this court has
note that
question
we
passed
reasona-
statute; the current
might
under
apportionment
await our definitive
that it should
conclude
interpretation
bly
Second,
mention
statutory
we need
statute.
general principle
only
which to
reed
indeed a slim
inaction is
upon
construction
legislative
L.Ed.2d
310-311
361 U.S.
v. Price (1960)
lean.
United States
(E.g.,
338-340,
5. apportion equitable principles. future cases), after motion
On remand (as
proper
upon
fee, a
a reasonable
first to calculate
the court should
proceed
rendered to both beneficiaries
reflects the
services
fee which
total
fee,17
then make a
the court must
fixed that
recovery.
Having
benefitted
it
reasonable
between
parties
apportionment
course,
will,
involve
often
Such an
only
recovery.18
calculation,
will not be
but such simplicity
relatively simple proportional
*13
instance,
consider,
whether
rule. The court should
the invariable
under
the rule
in
a defense
efforts
worker’s attorney’s
disproving
369, 366
of the under of the traditional acting always guidance whose we have examined above.19 equitable principles application From the it that Fuchs v. Western Oil Fields foregoing appears 25 (1972) 728 74], and Moreno v. Supply Cal.App.3d Cal.Rptr. [102 Venturini which reached (1969) 551], Cal.App.3d [81 Cal.Rptr. announced, constructions of an statute to that here analogous contrary are disapproved.20 conclusion,
In we out that the asks us point employer abnegate of the which this court equitable principle apportionment he asks us to assume that the recognized many years; has forbidden us to this clear apply principle spite Legislature’s to the He asks us to construe a statute so expressions contrary. worker entire for a require injured lawyer’s pay charge of which will benefit Yet if the recovery, part only employer. receives his fair share of the he must bear his fair recovery, share of the cost of the recovery.
The order of the trial court is reversed and the cause is remanded for a on the and allocation of hearing fees in a manner setting consistent with the announced in this principles opinion. 19It follows from the that the allocation of does foregoing equitable itself; (b), not confine itself situation to which section subdivision addresses 3856. in like manner it will to the remainder of the of section 3856. subdivisions Thus apply burden, when the bears the entire on employer’s attorney litigative judge proper motion will make the same reasonable allocation of fee and costs between the litigation worker, into account the service for the benefit of taking performed 3856, (§ (a).) each. subd. And likewise when the and worker to receive arrange from the same representation the same of fee in terms of the attorney: adjustment service rendered to the two clients and of this fee between those 3856, (§ (c).) benefitted follows from the statute. subd. when each Only his own does the direct party statute separately employs court to relinquish duty mandate equitable apportionment, fully with the (§ (c); of a case law in this keeping Korthe area. subd. see Estate development Dawson,. 465]; Cal.App.3d Cal.Rptr. Lawyers 1649-1650.) Clients: Fees From Funds Involuntary Attorney 87 Harv.L.Rev. *14 20Fuchs, Moreno, and Johnson v. L.D.S. Co. 254 496 Trucking Cal.App.2d [62 501], which intimated a Cal.Rptr. rule to that here announced dealt with contrary fees in cases settlements rather than and thus fell under involving judgments section 3860. Because the has evinced its intention that settlement and Com., (see situations be treated alike R. E. Inc. v. Industrial Acc. Spriggs, 785; 1957, 615, 1, 3860, 1825) Cal.2d Stats. supra, § ch. and because section like p. section calls on the court or board to look to “the benefit of both the employer fees, in employee” considerations set forth in this as to apportioning opinion section 3856 to section 3860. apply equally J.,* J., Mosk, J., J., Sullivan, Burke, concurred. C.
Wright, CLARK, J. I dissent. before us as one of framed the statutory having problem majority,
construction, (b),1 subdivision that Labor Code section decides in his action to share the costs incurred employee’s requires I cannot a third tortfeasor. agree. against party we must with the
In statute by begin guidance provided interpreting “is to ascertain and declare The task of the courts the Legislature. simply or in substance contained not to insert statute], what is in terms [in omitted, inserted; what has . . .” (Code what has been or to omit been Proc., the short answer to the instant 1858.) Civ. While this is § problem, more extended discussion is in order.
Section 3856 of the
law has a
workers’
history
long
this state. This
aids in
the statute’s
construc-
history
ascertaining
proper
In Dodds
re Davis
P.2d 853].)
tion. (In
(1936) Cal.App.2d
[63
was confronted
v. Stellar
Rejecting plaintiff’s argument, equitable stated in Dodds: “If such were followed so as to analogy impress or insurance proportionate liability upon carrier’s lien for its full reimbursement ‘expenditures compensation,’ at as accorded statute would be to that extent nullified.” (Id., p. *Retired Associate Justice of the Court under assignment by Supreme sitting
Chairman of the Judicial Council. noted, in the Labor all code sections cited hereinafter are found 1Unless otherwise Code. *15 178
We continued: “If there is to be in these any change statutory provisions of the for such should defining rights parties, suggestion change be addressed rather than to the courts.” at 506.) (Id., Legislature p.
Two
later the
amended section 3856 to
for
years
Legislature
provide
1949,
120, 2,
fees.
ch.
But
(Stats.
355-356.)
§
sharing
attorney’s
pp.
infer,
to what the
would
this
action cannot
contrary
majority
legislative
be read as an endorsement of wholesale
“concept
Moreover,
to the workers’
laws.
apportionment”
say
that the
acted to
the relief
in Dodds is
Legislature
provide
plaintiff sought
far from
that Dodds was
decided. Indeed we indicated as
saying
wrongly
much in R. E.
Inc. v. Industrial Acc. Com.
In section 3860 was amended to for shared provide 1957, 615, 1, However, fees. ch. was (Stats. 1825.) § p. provision short-lived as in 1959 the modified and inter reorganized, alia, 3860, sections 3856 and from both the deleting language requiring 1959, 1255, 2, fees. ch. Not (Stats. § p. the deletion of these was surprisingly, provisions regarded signifying in the law. Carden v. Otto 37 893 (See (1974) change Cal.App.3d Fuchs v. Western 25 749]; Oil Fields (1972) [112 Cal.Rptr. Supply 728, 736 v. 1 74]; Moreno Venturini (1969) Cal.App.3d [102 Cal.Rptr. 286, 290 Johnson v. L.D.S. Co. 551]; Cal.App.3d [81 Cal.Rptr. Trucking 254 496, 499 (1967) Branscum v. State 501]; Cal.App.2d [62 Cal.Rptr. Ins. Fund 232 (1965) 682].) Comp. Cal.App.2d Cal.Rptr. [42 statute, from an Ordinarily: “By deleting express provision existing arises that the intended a substantial presumption change the law.” v. Motor (Wallace Vehicles Department Cal.App.3d 356, 361 Clements v. T.R. Bechtel 657]; Cal.2d [90 Cal.Rptr. unabashed, 5].) Today majority, unimpressed reads these deleted back the law. into provisions
179 that used observes “the The Legislature significant majority correctly verbatim, thus reference the former statute of inviting portions the fails to draw 172). But the (ante, majority former p. interpretation” to The which this fact. former inference from correct interpretation absence the statute the is invited is the "reference given interpretation i.e., the interpreta- fees, regarding apportionment express provision Inc. E. this court in Dodds R tion of Spriggs, the ascribes the The Legislature’s majority only meaning the of the statutes is establishment recodification priority fees, and, in sections 3858 and provision attorney’s which the worker awards the amount future offsetting The alteration of the recovers from priority payments third-party. doNor not deletion of the fee does language. apportionment explain reasons for sections 3858 modification explain changing sections 3856 and 3860.
The relies on the failure of commentators majority opinion legislative discuss the deletion of apportionment provisions supporting that intended to continue mandate for proposition wonders if One fees. (Ante, why, p. is “a inaction in the face of wayward statutory interpretation of authoritative lean” the absence 175), reed which to (ante, slim p. upon discussion of new should more weight. any legislation support
Moreover, construction” of consideration of the “contemporaneous used cited as that term is case section subdivision (b), P.2d 796], Nat. v. 8 Cal.2d First Bank Kinslow (1937) majority, the term not conclusion. In Kinslow does the majority’s support was used describe construction” interpretation “contemporaneous at a statute over a of time. (Id., p. accepted by practitioners period here, construc 346.) Applying description “contemporaneous that, been absent (b), tion” of section subdivision express therefor, not of fees. the section does permit apportionment provision its but sure of its asserts: “The Uncertain of majority path goal, . . well situation instant case . constitute an might appropriate of the rule of even without reference apportionment, that the then (Ante, 168). statute.” argue proceeds p. majority 3856, subdi- into section actually incorporated vision is This conclusion reached certain (b). by stressing language fee,” both for section—“reasonable and “the services rendered *17 the benefit the the rule of liberal employer”—and construction of the workers’ laws 3202). (§ compensation
The for assessment aof reasonable is to fee be provision only expected. the decided a fee Presumably schedule against establishing the workers’ so, done what standard compensation sphere. Having other than fee, “reasonable” was to be established? And to be reasonable, take action, must into account the awarded in the i.e., the benefit to both and In (See, re employee. e.g., Osofsky (S.D.N.Y. F.2d 1931) 927.)2 The internal this logic language the innovative it precludes given reading by majority. construction, rule of liberal relied on Finally, statutory by does not invest this court with to administer workers’ majority, power we v. see fit. Acc. Com. (Ruiz as Industrial Cal.2d (1955) refused, refuse, we Once as we 229].) should now [289 use this rule to the clear effect of if even escape statutory language, not have of its fully might appreciated significance Ranch, (Earl nomenclature. v. Ltd. Industrial Acc. Com. 4 Cal.2d (1935) 767, 769 P.2d 154].) “California has a authorized liberal construction law, sure; of its to be but how far in that direction extend ‘liberality’ may would seem to two considerations: the latitude depend upon construed; of the statute which is be and (2) permitted wording limitations, the latitude within such the views permitted, character; tribunal. The first is a limitation reviewing objective a second is limitation. When the latter subjective personal ignores former, well arise as to where liberal ends may question interpretation Hanna, and nullification Cal. Law of (2 begins.” Employee Injuries 8-15.) Workmen’s ed. We must eschew the (2d 1975) Compensation p. (Id., to become crusaders. at 8-11 to 8-12.) temptation pp. is on majority’s emphasis throughout applicability
“common fund” the facts at hand. I turn this concept Accordingly, argument.
“The announced of the ‘common fund’ device for purpose awarding fees is to reach and a . . form enrichment. .” prévent peculiar unjust Clients: Fees From Funds (Dawson, Involuntary Lawyers Attorney 87 Harv.L.Rev. One wherein the 1625-1626.) may question 2If the succeeds in a which obtaining is employee’s attorney judgment, portion fee would reasonable be based on total repayable not surely recovery, employer, after the been the amount had subtracted. just remaining employer’s portion he was inasmuch to this decision unjust, recovery prior and, no less. more until had today, what he back received only paid—no have courts While is true that California long it applied have done so true only very it is they equally apportionment, circumstances, matters.3 trust or limited probate e.g., to the successful rule—“fairness The bases of litigant equitable ; *18 anof no benefit... correlative who otherwise receive prevention might ; . the unfair to the others . . encouragement advantage . . ”4—are not in the successful present peculiar setting litigant. to a unlike the claimant An workers’ ordinary compensation. employer, fund, but in fund, not in a share common is interested getting a The the fault of third back what he has owing party. paid getting to the charac- chooses attribute no Legislature’s majority significance as “lien I that a more terization of the a creditor.” submit employer that was meant natural construction leads to the conclusion the employer at to be as a true lien creditor such time as the regarded injured employee recovers a When an ordinary third-party tortfeasor. tort, his recovers in he is allowed no offset of fees attorney’s plaintiff creditors, his even the fund for suit created though indirectly It to this is that characterization of repayment. analogy employer aas “lien creditor” should lead.
The ultimate of the neither law nor is strength majority logic, position A its but rather to some ill-defined sense of fairness. implicit appeal result, however, closer aura. analysis dispels deceptive $30,000 a is Consider a situation which the injured employee awarded fees Reasonable tortfeasor. judgment against third-party $15,000 $10,000, amount to is costs) (and repayable benefits. If as amount workers’ compensation paid $10,000 of the will receive are judgment, apportioned, employee $10,000 If fees are not for the employer. apportioned leaving $5,000 $15,000, full will receive his only leaving received But it must be recalled already employee. benefits, $15,000 a total award of him compensation giving no worker’s he would received there had been what have $20,000—just if $25,000 him total while gives compensation Apportionment benefits. $5,000. Under the is out of (See Lasky, Subrogation pocket Laws—Rules, Remedies and Side Workmen’s Compensation California 8.) (Ante. 3See cases cited 167. fn. California p. majority. 748].) (1959) 53 Cal.2d 4Estate [346 of Stauffer 12 Santa Law. Clara cannot 19.) be Concepts equity Effects such viewed a result. sanctioning The of the workers’ law is primary purpose compensation indisputa is ble. It “to insure and those injured employee dependent upon him means subsistence while he is unable to work and also adequate about his as soon as in order that he be bring recovery possible may returned to the ranks of labor.” Iron Wks. v. (Union productive Industrial Acc. Com. Cal. P. 410].) holding to further this “To admission—does' majority—by nothing purpose. sure, be will increase the majority’s] [the interpretation plaintiff’s present benefits, tort and decrease the employer’s recoupment past but to characterize this result anas increase in benefits is (Ante, not is ignore reality.” Unfortunately, holding p.. just neutral with to the concerns of workers’ “In the respect compensation. with concern workmen’s for the dealing legislative policy compensation, *19 cost of has been element.” system always important (Lasky, supra, 12 Santa Clara at 2.) Law. This concern is p. expressed subrogation of the act. Whenever tois be made provisions possible, whole. so struck a balance By Legislature providing clearly between the and the burden on the injured protection employee This court should refrain ultimately consuming public. from strained intent this balance. legislative interpretation upsetting “A decision considered in terms of ‘the solely eliminating free . carrier’s ride’ . . can have side-effects which far many go beyond such a at (Id., range analysis.” simplistic p. which, There are who those would ridicule a decision undoubtedly Inc., Dodds and R. E. refers the following Spriggs, relief he But seeks. it is not the of this court province here, To direction. anticipate legislative anticipate not, is function. correctly necessarily usurp McComb, J., concurred.