(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)
To the same effect are Quinn v. State of California, 15 Cal. 3d 162, 167-69, 124 Cal. Rptr. 1 (1975) (holding that an employee who obtains a judgment in a third-party action that creates a fund from which the compensation insurer’s lien is satisfied, in whole or in part, can require the passive beneficiary to bear the fair share of the litigation costs, including attorney’s fees); Hartwig v. Zacky Farms, 2 Cal. App. 4th 1550, 1555-56, 3 Cal Rptr. 2d 828 (1992) (holding that merely retaining separate counsel or filing a complaint in intervention or a lien, with little else, does not satisfy the standard of “active participation”; there, the declaration offered by the employer’s workers’ compensation insurer’s attorney was insufficient to support a finding that the lienholder had actively participated in the case); and Kindt v. Otis Elevator Co., 32 Cal. App. 4th 452, 458-60, 38 Cal. Rptr. 2d 121 (1995) (same essential holding).(These cases were decided under section 3856(b), Cal. Lab. Code, referring to judgments rather than settlements. But situations arising under sections 3856 and 3860 must be treated alike. E.g., Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 705-06, 709, 145 Cal. Rptr. 210(1978).)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
These cases all hold that where an employer or his workers’ compensation insurer retains separate counsel, files a complaint in intervention and even undertakes a litigation task or two, that participation is nominal and the intervenor becomes a passive beneficiary of the common fund.
In that situation, the lien is reduced by the costs and attorney’s fees of the plaintiff’s attorney who has solely and actively prosecuted the case to a successful conclusion.
There is no question here that White ‘s involvement was nominal. It filed a complaint in intervention 10 months after the case had begun, and less than two months before the case was successfully concluded by settlement. Its involvement in the mediation was limited to claiming its entitlement to its lien amount; it did nothing and took no action that helped increase the common fund. Put another way, it did nothing related to proving the defendants’ liable for plaintiff’s injuries or his damages. (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.