In the event of suit against such third party:
(a)If the action is prosecuted by the employer alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney’s fee which shall be based solely upon the services rendered by the employer’s attorney in effecting recovery both for the benefit of the employer and the employee. After the payment of such expenses and attorney’s fees, the court shall apply out of the amount of such judgment an amount sufficient to reimburse the employer for the amount of his expenditure for compensation together with any amounts to which he may be entitled as special damages under Section 3852 and shall order any excess paid to the injured employee or other person entitled thereto.
(b)If the action is prosecuted by the employee alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney’s fee which shall be based solely upon the services rendered by the employee’s attorney in effecting recovery both for the benefit of the employee and the employer. After the payment of such expenses and attorney’s fee the court shall, on application of the employer, allow as a first lien against the amount of such judgment for damages, the amount of the employer’s expenditure for compensation together with any amounts to which he may be entitled as special damages under Section 3852.
(c)If the action is prosecuted both by the employee and the employer, in a single action or in consolidated actions, and they are represented by the same agreed attorney or by separate attorneys, the court shall first order paid from any judgment for damages recovered, the reasonable litigation expenses incurred in preparation and prosecution of such action or actions, together with reasonable attorneys’ fees based solely on the services rendered for the benefit of both parties where they are represented by the same attorney, and where they are represented by separate attorneys, based solely upon the service rendered in each instance by the attorney in effecting recovery for the benefit of the party represented. After the payment of such expenses and attorneys’ fees the court shall apply out of the amount of such judgment for damages an amount sufficient to reimburse the employer for the amount of his expenditures for compensation together with any other amounts to which he may be entitled as special damages under Section 3852.
(d)The amount of reasonable litigation expenses and the amount of attorneys’ fees under subdivisions (a), (b), and (c) of this section shall be fixed by the court. Where the employer and employee are represented by separate attorneys they may propose to the court, for its consideration and determination, the amount and division of such expenses and fees.
Notes of Decisions
Cited in
74
cases (
1 in the last 5 years), 1946–2021 · leading case:
Draper v. Aceto, 33 P.3d 479 (Cal. 2001).
Draper v. Aceto, 33 P.3d 479 (Cal. 2001).
· cites it 6× “(Lab.Code, § 3856, subd. (b); and see Branscum v.”
Collins v. Union Pac. R.R., 77 Cal. Comp. Cases 622 (Cal. Ct. App. 2012).
· cites it 3× “Labor Code section 3856, subdivision (b), provides that in the event of suit against a third party by an employee, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action,…”
Parnell v. Adventist Health Sys./West, 109 P.3d 69 (Cal. 2005).
· cites it 2× “, Lab. Code, §§ 3856, subd. (b) [employer’s lien for worker’s compensation benefits], 3865 [Employment Development Department lien for compensation to the employee for lost earnings], 4417 [Asbestos Workers’ Account lien]; Health & Saf.”
Heaton v. Kerlan, 166 P.2d 857 (Cal. 1946).
· cites it 5× “The payment of an award that includes compensation for negligent treatment of an injury, and the payment of a judgment for damages caused by the same treatment, would amount to double recovery.”
Crampton v. Takegoshi, 58 Cal. Comp. Cases 439 (Cal. Ct. App. 1993).
· cites it 4× “6 He further contends that he is entitled to litigation expenses and attorney fees under Labor Code section 3856. Labor Code section 3856 deals with actions against third parties and covers suits prosecuted by the employer alone (subd.”
Roe v. Workmen's Comp. Appeals Bd., 528 P.2d 771 (Cal. 1974).
· cites it 4× “The Labor Code specifies three judicial procedures for obtaining reimbursement of amounts previously paid to the employee.”
Dodds v. Stellar, 183 P.2d 658 (Cal. 1947).
· cites it 5× “(Lab. Code, § 3856.) Such lien is limited to the amount actually paid by the insurance carrier or for which it has become liable because of the malpractice.”
City & Cnty. of San Francisco v. Sweet, 906 P.2d 1196 (Cal. 1995).
· cites it 2× “) Labor Code section 3856, subdivisions (b) and (c), included express provisions for payment of attorney fees from damages recovered by an employee in an action prosecuted by the employee or the employee and employer for the benefit of both against a third party responsible for…”
Witt v. Jackson, 366 P.2d 641 (Cal. 1961).
· cites it 2× “Code, § 3853), or allow the employee to prosecute the action himself and subsequently apply for a first lien against the amount of the employee's judgment, less an allowance for litigation expenses and attorney's fees (Lab.”
Tilbury Constructors, Inc. v. State Comp. Ins. Fund, 2006 Cal. Daily Op. Serv. 2026 (Cal. Ct. App. 2006).
“(Lab. Code, § 3856, subd. (b).) The New Plumbing court concluded that requiring the carrier to choose the method that was most favorable to its insured would vitiate the choices presented by the statutory scheme because the carrier would always have to file an action on its own…”
Burum v. State Comp. Ins. Fund, 184 P.2d 505 (Cal. 1947).
· cites it 3× “(Lab. Code, § 3856.) In the present case, according to the facts pleaded, the Fund elected the third course of procedure, the lien method of recovery in the death action, as best calculated to assure its recoupment of “expenditures for compensation.”
Lee v. State Farm Mut. Auto. Ins., 57 Cal. App. 3d 458 (Cal. Ct. App. 1976).
· cites it 2× “Plaintiff there recovered a substantial judgment and following trial, the liability insurance carrier reduced the amount of the recovery by deducting from the judgment the amount of workers' compensation benefits received by the plaintiff.”
— Cal. Labor Code § 3856(b) — 1 case
— Cal. Labor Code § 3856(b)(c) — 1 case
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