This unpublished opinion by the First District involved the language in Labor Code Section 3856 which sets forth the principle of "equitable apportionment" in determining how attorneys fees are to be calculated following a third party recovery.
A jury awarded damages to an injured worker / plaintiff in his civil suit for personal injuries from a third party relating to a car accident. However, the workers' compensation lien of plaintiff's employer (the City of Ukiah) exceeded the amount of the judgment.
The plaintiff therefore sought priority payment of his attorney fees and litigation expenses under the statute based on the argument that the employee's efforts alone resulted in the third-party judgment benefitting the employer.
The trial court disagreed, relying on law governing the allocation of attorney fees and costs when the recovery is produced through the joint efforts of the separate attorneys of the employee and employer.
The appellate court reversed the trial court's judgment, ruling that substantial evidence did NOT support a finding that the City's counsel "actively participated" in procuring the judgment. It thus ordered the trial court to "equitably apportion" reasonable attorney fees and costs to the plaintiff, to be paid first from the judgment.
"Plaintiff asserts that the record contains no evidence of active participation by the City's counsel in the litigation and contends that the uncontradicted evidence shows that his attorney alone prosecuted the action. We agree.
"Defendant did not present any evidence regarding the role played by the City's attorneys and did not address this issue at all other than to note in argument that the City had "actively participated in the litigation up to the time of the Assignment of Lien." Such a conclusory assertion does not satisfy the 'active participation' requirement."
The case is Eby v. DeJong.
To read the full opinion,
PLEASE CLICK HERE.
- Help for the Injured Worker
