The relevance of this ruling to employers/carriers is the Court's language that pursuant to prior case law, "employer and employee third-party actions under the § 3850 et seq. statutory scheme are interchangeable". County of San Diego v. Sanfax Corp (1977) 19 Cal. 3d 862., and the effect this would have upon potential employer rights. Therefore, an employer/carrier should be aware of their potential rights in a situation where a worker has moved forward with a civil action against a "knowing defendant", but where that employer/carrier has not been given its proper notice and consent notifications pursuant to the Labor Code.
The Court noted prior cases where they found that the lack of such notice did not bar the employer/carrier from bringing their action. The Court noted in prior cases such as Glover and Pope that “a knowing third-party tortfeasor who proceeded with a settlement and release with an employee - without the employee or the tortfeasor giving notice of the perspective settlement to the employer - entered into the settlement at its peril."
Therefore, an employer/carrier should note a few things with regard to this matter. One is that although the ramifications were not specifically discussed, the notice and consent requirements of Labor Code § 3853, 3859 and 3860 should be adhered to so that no difficulties with either the underlying civil settlement or any further workers' compensation credit issues arise. Secondly, in a situation where an employee moves forward with a civil settlement without adequate notice to and consent from the employer, there may be the right to still move forward with an action against that "knowing defendant" under certain circumstances. |
