Fonseca v. Cal. Ins. Guarantee Assn.
Filed 7/5/06 Fonseca v. Cal. Ins. Guarantee Assn. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
| JUAN SALAS FONSECA, Plaintiff and Appellant, v. CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, Defendant and Respondent. | B185176 (Los Angeles County Super. Ct. No. BC171506) |
APPEAL from an order of the Superior Court of Los Angeles County. David W. Workman, Judge. Reversed and remanded for further proceedings.
Lessing C. Solov for Plaintiff and Appellant.
Law Offices of William J. Toppi and William J. Toppi for Defendant and Respondent.
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Following the settlement of an employee's personal injury action with a third party tortfeasor, the trial court awarded the entirety of the settlement proceeds to the employer's workers' compensation carrier as reimbursement for the workers' compensation benefits paid to the employee. In entering the order, the trial court erred by failing (1) to first determine whether the employer was at fault for the employee's injuries, and, if so, to what extent; and (2) to determine the extent to which the attorneys for the employee and the workers' compensation administrator were involved in procuring the settlement and creating the settlement fund.
Accordingly, we reverse the trial court's order and remand the matter for further proceedings. Specifically, the trial court is instructed to determine the degree of the employer's fault, if any, and the employee's total damages. Then the trial court must determine whether the employee's attorney negotiated the settlement alone or whether the employer's workers' compensation carrier's attorney participated in effecting the settlement. Only after these determinations are made can the trial court then order the disbursement of the settlement funds.
FACTUAL AND PROCEDURAL BACKGROUND
Juan Salas Fonseca is injured and files a products liability action
On June 11, 1996, appellant Juan Salas Fonseca (Fonseca) was employed by Marquez Brothers Enterprises, Inc. While driving a Mitsubishi FUSO truck, during the course and scope of his employment, Fonseca sustained serious physical injuries.
On May 21, 1997, Lessing C. Solov (Solov), on behalf of Fonseca, filed a products liability action against Mitsubishi FUSO Truck of America, Inc. and Diamond Sales & Service, Inc. (Diamond) (collectively Mitsubishi).
At the time Fonseca sustained his injuries, his employer held a valid workers' compensation insurance policy with HIH America Compensation and Liability Company (HIH America). Thus, on November 5, 1997, HIH America filed a complaint in intervention against Mitsubishi, seeking to recover any workers' compensation benefits and medical expenses that HIH America paid as a result of Fonseca's injuries. Diamond answered, generally alleging that any judgment recovered by Fonseca should be reduced by the amount of the payments made to him by HIH America. Specifically, Diamond cited Witt v. Jackson (1961) 57 Cal.2d 57 and alleged that: (1) Fonseca â€
