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Douglas Oil Co. v. Western Asphalt Service2/10/1994
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
No. B038895
1994.CA.47317 ; 22 Cal. App. 4th 372; 28 Cal. Rptr. 2d 269
Decided: February 10, 1994.
DOUGLAS OIL COMPANY OF CALIFORNIA, CROSS-COMPLAINANT AND APPELLANT,
v.
WESTERN ASPHALT SERVICE, CROSS-DEFENDANT, CROSS-COMPLAINANT AND APPELLANT; WEST-MARK, INC., CROSS-DEFENDANT AND RESPONDENT.
Superior Court of Los Angeles County, No. SCC 08371, Henry P. Nelson, Judge.
Kinkle, Rodiger & Spriggs, Guillermo W. Schnaider and Michael R. Haya for Cross-complainant and Appellant.
Lynberg & Watkins, Michael J. Larin and Joyce L. Mavredakis for Cross-defendant, Cross-complainant and Appellant.
Hagenbaugh & Murphy and John J. Tary for Cross-defendant and Respondent.
Opinion by Klein, P. J., with Kitching, J., Concurring. Separate Concurring and Dissenting opinion by Croskey, J.
Klein
This is an appeal from a judgment in favor of plaintiff William Darrell Gregory (Gregory) in a personal injury action against cross-complainant and appellant Douglas Oil Company of California (Douglas) and cross-defendant, cross-complainant and appellant Western Asphalt Service (Western).
SUMMARY STATEMENT
Gregory's injuries arose out of a work-related fall from an oil tanker. The case initially was a relatively simple third party tortfeasor lawsuit related to a workers' compensation action. Gregory did not sue Transit Resources, Inc. (TRI), the company which paid his salary and provided his workers' compensation benefits. Gregory did sue Douglas and others as third party tortfeasors including Western, the company which owned the equipment he operated and directed his work activity. Western defended the lawsuit on the basis it was Gregory's special employer and thus entitled to immunity from civil damages under the exclusive remedy rule. (Lab. Code, § 3600, subd. (a), 3602, subd. (a).)
The jury found Douglas and Western had been 35 and 65 percent responsible, respectively, for Gregory's damages. The jury also found Western had been Gregory's special employer at the time of the accident. There was sufficient evidence to support the jury's special verdict on that issue, given the instructions and the manner in which the case was tried. Based on the jury's verdict, the trial court held Douglas responsible for the entire $1.5 million verdict and denied Douglas's postverdict motions. This appeal followed.
In the course of addressing Douglas's contentions respecting its claims for contribution from Western, it appeared Western itself was not insured for workers' compensation liability. We requested additional briefing on the legal significance of that fact.
Western, in its response to our request, claimed it had secured the payment of compensation by requiring TRI, by contract, to obtain such insurance for its drivers. In a published opinion filed December 29, 1993, we rejected that contention and reluctantly concluded Western's failure to secure the payment of compensation by being insured for such liability precluded its assertion of workers' compensation as the exclusive remedy
against it. (§ 3700, 3706.) Absent the exclusive remedy defense, we held Western had to answer in tort for its percentage share of Gregory's damages.
Based thereon, we reversed the
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