If your work comp subrogation action involves the death of the injured worker, best practice is that you file an independent subrogation action to protect the statute. Doing anything short of that could spell disaster for your recovery efforts and net a zero in recovery.
Here’s a situation:
- An insured worker dies in a motor vehicle accident that was not his fault. Subrogation potential!
- The work comp carrier pays out a substantial sum to settle the claim.
- The injured worker’s family gets a personal injury attorney and files a lawsuit.
- The employer/carrier does not file suit to protect the statute. Instead, the employer/carrier just communicates with the plaintiff attorney and waits to assert its lien off the personal injury settlement.
- The case settles and plaintiff dismisses his case without paying the comp carrier.
- The plaintiff attorney for the worker’s family tells the carrier that there was only one cause of action for wrongful death and the carrier’s lien doesn’t attach it. He is not reimbursing the carrier a dime.
The plaintiff attorney is RIGHT! I’ll discuss the details below.
Don’t get caught
If there is a death claim, never file a lien OR an intervention. The only real way to protect yourself is by filing a separate complaint to protect the statute. Because:
- The lien could end up being worthless depending on how the plaintiff attorney crafts the complaint.
- Intervention may fail as well for the same reason the lien fails. Employer/carrier has no recovery rights for wrongful death so it doesn’t protect their rights or toll the statute.
Wrongful Death: CCP § 377.60 establishes a separate statutory cause of action in favor of specified heirs of a person who dies as a result of the “wrongful act or neglect” of another. Under a wrongful death cause of action, the specified heirs are entitled to recover damages on their own behalf for the loss they have sustained by reason of the bodily injury victim’s death.
[See Corder v. Corder (2007) 41 C4th 644, 651, 61 CR3d 660, 664; Fitch v. Select Products Co. (2005) 36 C4th 812, 819, 31 CR3d 591, 595; Boeken v. Philip Morris USA Inc. (2013) 217 CA4th 992, 997, 159 CR3d 195, 198 (discussed at ¶ 3:2242)]
The elements of a wrongful death action are a tort (negligence or other wrongful act), resulting death (causation), and loss (damages) suffered by the heirs. When the tort is negligence, plaintiff must, of course, prove defendant’s duty and breach thereof.
[Lattimore v. Dickey (2015) 239 CA4th 959, 968, 191 CR3d 766, 773; Jacoves v. United Merchandising Corp. (1992) 9 CA4th 88, 105, 11 CR2d 468, 478].
“Survival” action: A wrongful death claim is separate and distinct from the victim’s action which “survives” to the estate under CCP § 377.20 (¶ 3:285 ff.). Whereas damages recovered in a “survival” action belong to the victim’s estate, damages recoverable in a wrongful death action belong to the parties-plaintiff personally—wrongful death damages are not part of the victim’s estate and do not descend through the estate.
[CCP § 377.60; see Castaneda v. Department of Corrections & Rehab. (2013) 212 CA4th 1051, 1063, 151 CR3d 648, 656-657; Adams v. Sup.Ct. (Centinella Freeman Regional Med. Ctr.) (2011) 196 CA4th 71, 78-79, 126 CR3d 186, 192; also see Ross & Cohen, Cal. Prac. Guide: Probate (TRG), Ch. 15]
Damages recoverable in WD Action: As a general rule, each wrongful death claimant is entitled to damages for all detriment personally suffered and is likely to suffer in the future because of decedent’s death. The measure of damages is not limited to out-of-pocket losses; rather, it covers the total value of the benefits the claimants could reasonably expect to receive had decedent lived.
[Corder v. Corder (2007) 41 C4th 644, 663, 61 CR3d 660, 674; Boeken v. Philip Morris USA Inc. (2013) 217 CA4th 992, 997-998, 159 CR3d 195, 198-199; Allen v. Toledo (1980) 109 CA3d 415, 423, 167 CR 270, 275; CACI 3921 (death of adult), 3922 (death of minor); and see BAJI 14.50, 14.52]
Damages recoverable by estate in CCP § 377.30 “survivor” action: Expressly excluded from a wrongful death recovery are damages awardable under CCP § 377.34 to compensate the estate for detriment decedent personally suffered before death. [CCP § 377.61] Thus, wrongful death claimants are not entitled to damages for:
- Medical expenses incurred by decedent prior to death;
- Decedent’s wage losses or impaired earning capacity;
- Decedent’s pain and suffering and/or damages for disfigurement.
[See Fitch v. Select Products Co. (2005) 36 C4th 812, 819, 31 CR3d 591, 595; Corder v. Corder (2007) 41 C4th 644, 661, 61 CR3d 660, 672; DeMeo v. St. Francis Hosp. (1974) 39 CA3d 174, 176-177, 114 CR 280, 281-282]
Workers’ compensation “recoupment” rights: An employer or insurer is entitled to bring an action against a third party tortfeasor to recover payments made as a proximate result of injury to or death of an employee (including death benefits paid to the Department of Industrial Relations in cases of decedents without dependents). [Lab.C. § 3852]
This “recoupment” right derives from the tort remedy the injured employee would have had but for the death. It is wholly distinct from the § 377.60 claimant’s independent (nonderivative) right to sue for decedent’s wrongful death.
[Eli v. Travelers Indem. Co. (1987) 190 CA3d 901, 235 CR 704]