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Rymer v. Hagler6/27/1989
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
No. F009315
1989.CA.40631 ; 260 Cal. Rptr. 76; 211 Cal. App. 3d 1171
June 27, 1989
LEONARD RYMER, JR., PLAINTIFF AND APPELLANT,
v.
SHERIDAN HAGLER, DEFENDANT AND RESPONDENT
Superior Court of Kern County, No. 179199, Arthur E. Wallace, Judge.
Henry W. Bockman for Plaintiff and Appellant.
Clifford, Jenkins & Brown, Robert D. Harding and Steven D. Rick for Defendant and Respondent.
Opinion by Baxter, J., with Martin, Acting P. J., and Stone (w. A.), J., concurring.
Baxter
Statement of Facts and Proceedings Below
Appellant Leonard Rymer, Jr., filed an application for "Adjudication of Claim" against his employer , Sheridan Hagler, with the Workers' Compensation Appeals Board (WCAB) on November 16, 1981. The claim sought compensation for injuries resulting from a work-related accident. Appellant later filed a civil complaint for damages against Hagler in the Kern County Superior Court, which was predicated on the injuries received in the same accident. Appellant relies on Labor Code section 3706 to establish jurisdiction in the superior court. The complaint filed in superior court alleges that Hagler failed to provide workers' compensation benefits to appellant when injured. The two proceedings progressed concurrently.
On September 9, 1986, appellant brought a motion in the WCAB proceeding to exclude Fremont Indemnity Company (Fremont) as a party to the proceeding on the basis that Fremont was not the workers' compensation carrier for Hagler at the time of appellant's injuries. After hearing the arguments of counsel, the WCAB judge denied the motion and found Fremont "either has workers' compensation coverage for the alleged date of
injury or is estopped to deny workers' compensation coverage for the alleged date of injury based on their admission of such coverage." The parties were notified the decision was subject to a "Petition for Reconsideration" as provided in section 5900, subdivision (a), which provides that any aggrieved person may seek rehearing of any final order, decision or award made and filed by the appeals board or a workers' compensation judge. Further testimony on the merits of the workers' compensation claim was heard that same day, but the hearing was not concluded. A second day of testimony was set for a later date, but was never held. On November 13, 1986, all parties were served with a written copy of the minutes of the previous hearing at which the WCAB judge issued his order concerning coverage. The order was included in the minutes. That same day appellant petitioned for a voluntary dismissal of the workers' compensation claim. The petition was granted and the claim dismissed on December 3, 1986. Appellant never did seek reconsideration of the judge's decision on the motion to exclude Fremont.
On February 19, 1987, Hagler filed a motion for judgment on the pleadings in the superior court action on the ground that the WCAB judge's ruling on the issue of workers' compensation coverage was binding on appellant in the superior court action. Hagler asked the court to take judicial notice of the prior ruling and argued that since the hearing officer had found coverage on the date of appellant's injury, appellant's civil action could not be maintained under section 3706.
The tria
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