(a)The claim of an employee, including, but not limited to, any peace officer or firefighter, for compensation does not affect their claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer. Except as provided in subdivision (b), an 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 they were liable including all salary, wage, pension, or other emolument paid
to the employee or to their 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.
(b)(1)This subdivision applies only to an employee who is a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or a
firefighter who is employed by any of the following:
(A)A city.
(B)A county.
(C)A city and county.
(D)A fire protection district.
(2)An employer of an employee described in paragraph (1) shall be entitled to receive no more than one-third of a third-party defendant’s applicable liability insurance policy limits, if both of the following are true:
(A)The employee establishes that their total damages exceed the net recovery available after satisfaction of the employer’s claim.
(B)The total liability insurance limits available are insufficient to fully compensate the employer and employee’s proven damages.
(3)The
one-third maximum allocation under this subdivision is intended to reflect a fair and equitable share of the recovery in light of the injured employee’s total damages, attorney’s fees, and costs of suit, and shall be deemed exclusive of any lien or offset by the employer.
(4)The employer’s right to reimbursement or subrogation shall be subordinate to the
maximum allocation set forth in this subdivision. The maximum allocation to the employer described in this subdivision shall apply to all settlement agreements and judgments and shall take precedence over any employer lien or subrogation claim. Any remaining proceeds may then be allocated in accordance with existing lien and subrogation principles.
Notes of Decisions
Cited in
137
cases (
6 in the last 5 years), 1944–2024 · leading case:
Witt v. Jackson, 366 P.2d 641 (Cal. 1961).
Witt v. Jackson, 366 P.2d 641 (Cal. 1961).
· cites it 4× “) Labor Code section 3852, however, authorizes an action by an employee against a third party whose negligence was a proximate cause of his injuries.”
Cnty. of San Diego v. Sanfax Corp., 568 P.2d 363 (Cal. 1977).
· cites it 3× “To the extent that the damages which the *873 employee recovers from a third party simply duplicate the benefits which the employee has already received from the employer, the employee’s own recovery provides a fund from which the employer may draw.”
Waste Mgmt. Inc. v. Superior Court, 2004 Cal. Daily Op. Serv. 4719 (Cal. Ct. App. 2004).
· cites it 4× “III Under the workers' compensation scheme, an employee's remedy against an employer for a work-related injury is generally limited to the benefits provided by statute. (Lab.Code, § 3601.”
Walters v. Sloan, 571 P.2d 609 (Cal. 1977).
· cites it 2× “As a matter of fact, the employee's right against the negligent third party is precisely the same as if the injury had occurred outside the employer-employee relationship.”
Phelps v. Stostad, 939 P.2d 760 (Cal. 1997).
· cites it 2× “(Lab. Code, § 3852.) Likewise, in appropriate circumstances, the employer is entitled to recover from the negligent third party the amount of compensation the employer has paid to the injured worker.”
Toland v. Sunland Hous. Grp., Inc., 955 P.2d 504 (Cal. 1998).
· cites it 2× “(Lab.Code, §§ 3852, 3856.) If, as the majority seems to suggest, even a negligent hirer bears no civil responsibility for injuries to contractors' employees, the contractor, even if faultless, will be unable to recover its costs of compensation from the negligent hirer.”
Bell v. Indus. Vangas, Inc., 637 P.2d 266 (Cal. 1981).
· cites it 2× “‘The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer.”
Calatayud v. State of California, 959 P.2d 360 (Cal. 1998).
· cites it 2× “The Legislature has chosen to limit the liability of employers, but not of third parties, for on-the-job injuries (Lab.Code, § 3852), balancing the efficiencies of the workers' compensation system with the right of employees to seek judicial redress for personal injury.”
Roe v. Workmen's Comp. Appeals Bd., 528 P.2d 771 (Cal. 1974).
· cites it 4× “The employer may bring a direct action against the third party (Lab. Code, § 3852), join as a party plaintiff in a suit brought by the employee (Lab.”
Barme v. Wood, 689 P.2d 446 (Cal. 1984).
· cites it 2× “(Lab. Code, § 3852.) [2] The complaint alleged that as of September 1978, the city had *178 paid approximately $79,000 in such benefits; the total amount of benefits was expected to exceed $150,000.”
Vasquez v. North Cnty. Transit Dist., 292 F.3d 1049 (9th Cir. 2002).
· cites it 3× “The City, Vasquez’ workers’ compensation provider, filed a complaint in intervention in state court, pursuant to California Labor Code § 3852, 2 seeking to recover the benefits it paid to Vasquez.”
— Cal. Labor Code § 3852(a) — 1 case
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