California - Workers' Compensation Subrogation In All 50 States - 5th Edition

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Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover

Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic

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§ 11.5 California

§ 11.5[1] Statutory Subrogation Rights

Workers' compensation subrogation in California appears to be
one of the most complex scenarios in the country, but yet is very
protective of the workers' compensation carrier's subrogation rights.
Workers' compensation subrogation in California is governed by a
series of statutes within the California Labor Code.1 One statute
within the California Insurance Code also makes clear that a
workers' compensation carrier is subrogated to the rights of the
employer under all of these statutes.2 The following are the most
significant statutes affecting the workers' compensation carrier's
subrogation rights in the State of California:3

§ 3850 Definitions. As used in this chapter:

(a) "Employee" includes the person injured and any
other person to whom a claim accrues by reason of the
injury or death of the former.

(b) "Employer" includes insurer as defined in this
division.

(c) "Employer" also includes the Self-Insurers' Security
Fund, where the employer's compensation obligations
have been assumed pursuant to Section 3743.4

§ 3851 Survival of Action. The death of the employee or of
any other person, does not abate any right of action
established by this chapter.5

§ 3852 Action against Third Person; Rights of Employee
and Employer. The claim of an employee, including, but not
limited to, any peace officer or firefighter, for compensation
does not affect his or her claim or right of action for all
damages proximately resulting from the injury or death
against any person other than the employer. Any employer
who pays, or becomes obligated to pay compensation, or
who pays, or becomes obligated to pay salary in lieu of
compensation, or who pays or becomes obligated to pay an
amount to the Department of Industrial Relations pursuant
to Section 4706.5, may likewise make a claim or bring an
action against the third person. In the latter event the
employer may recover in the same suit, in addition to the
total amount of compensation, damages for which he or she
was liable including all salary, wage, pension, or other
emolument paid to the employee or to his or her dependents.

The respective rights against the third person of the heirs of
an employee claiming under Section 377.60 of the Code of
Civil Procedure, and an employer claiming pursuant to this
section, shall be determined by the court.6

§ 11.5 California

§ 11.5[1] Statutory Subrogation Rights
§ 11.5[2] Third Parties
§ 11.5[3] Allocation of Third-Party Recovery
§ 11.5[4] Attorneys’ Fees and Costs
§ 11.5[5] Credit/Advance
§ 11.5[6] Staff Leasing/Temporary Employee Services and Borrowed Servant Doctrine
§ 11.5[7] Related Subrogation Issues
§ 11.5[8] Statutes of Limitations
§ 11.5[9] Workers’ Compensation in California

Gary Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. Mr. Wickert is also a politician in Wisconsin, serving his fourth term as Town Supervisor in the Township of Cedarburg. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., he returned to his native Wisconsin in 1998 and co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 300 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 250 insurance companies. Gary Wickert is also a commercial fiction author and his latest political thriller, Dark Redemption (Tudor Publishers), is available on Amazon.com.

Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also nationally certified as a Civil Trial Advocate by the National Board of Trial Advocacy (NBTA), for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For nearly twenty-five years, he has also served as an expert witness on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He is one of only a few lawyers to have ever represented a client before the United States Supreme Court on a subrogation issue, and was named one of Law & Politics and Milwaukee Super Lawyers magazine's Super Lawyers for 2005, 2006, and 2008. For a complete resume on Gary L. Wickert, see Appendix A-13 of this book.