Judge Blaine K. Bowman, Case Number: 37-2023-00021929-CU-PT-CTL, Date: 2024-05-24 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2023-00021929-CU-PT-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 23, 2024

05/24/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Petitions - Other Motion Hearing (Civil) 37-2023-00021929-CU-PT-CTL OHIO SECURITY INSURANCE COMPANY VS LOPEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Respondent Ohio Security Insurance Company's motion to vacate prior rulings, deem Claimant's demand for arbitration void and dismiss the petition for lack of subject matter jurisdiction is DENIED.

None of the authorities Ohio Security relies on requires that Claimant pursue a workers' compensation claim prior to Claimant pursuing recovery under the uninsured/underinsured (UIM) coverage in the policy issued by Ohio Security to Claimant's employer, Thompson Distributing, Inc. Ohio argues that Claimant's demands for arbitration under the UIM policy were improper under Insurance Code § 11580.2(f) because Claimant did not provide the required declaration. Pursuant to § 11580.2 [Uninsured motorist endorsement or coverage; underinsured motorist coverage] . . . .

(f) . . . . Any demand or petition for arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the insured has a workers' compensation claim; (ii) the claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to proceed immediately.

It is undisputed that Claimant has not made a workers' compensation claim. In this circumstance, the court finds Claimant's failure to include a declaration stating that Claimant has not made a workers' compensation claim does not render Claimant's demands for arbitration or any subsequent proceedings void.

The court is not persuaded by Ohio Security's reliance on the general statements of the law in Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal.3d 1, 5 (e.g., 'Labor Code section 3602 expressly states that the right to recover workers' compensation benefits is 'the sole and exclusive remedy' available to an injured employee against his employer') because neither Marsh nor any of the other authorities Ohio Security relies on discuss the interplay between a workers' compensation claim and a claim under the UIM coverage of the employer's insurance policy. The other language Ohio Security quotes from Marsh ('the workers' compensation system encompasses all disputes over coverage and payment, whether they result from actions taken by the employer, by the employer's insurance carrier') is also distinguishable because this language is in the context of a bad faith claim against the independent claims administrator hired by the employer to handle the employee's workers' compensation claim.

Marsh, 49 Cal.3d at 4, 8.

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3100191 2 CASE NUMBER: CASE TITLE: OHIO SECURITY INSURANCE COMPANY VS LOPEZ [IMAGED] 37-2023-00021929-CU-PT-CTL Nor is the court persuaded by Ohio Security's reliance on Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1 and Case v. State Farm Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397. These cases are both insurance bad faith cases arising out of circumstances where the employee is concurrently pursing a workers' compensation claim and a claim under the UIM coverage of the employee's own personal insurance policy. Such circumstances are not before the court on this motion.

Claimant pursues a claim against Ohio Specialty under the UIM coverage of Claimant's employer's policy.

The court finds the discussion of the policy underlying Insurance Code § 11580.2 in Rangel and Case instructive. Case explains, Section 11580.2 includes two provisions designed to prevent a double recovery of UM benefits and workers' compensation benefits for the same injury. (Rangel, supra, 4 Cal.4th at pp. 7-9, 14 Cal.Rptr.2d 783, 842 P.2d 82.) In 1961, the Legislature amended the statute to permit the reduction of UM benefits in the event of workers' compensation benefits. (Stats. 1961, ch. 1189, § 2, p. 2931; Rangel, supra, 4 Cal.4th at p. 7, 14 Cal.Rptr.2d 783, 842 P.2d 82.) Subdivision (h) of section 11580.2 states: 'Any loss payable under the terms of the uninsured motorist ... coverage to or for any person may be reduced: [¶] ... By the amount paid and the present value of all amounts payable to him or her ... under any workers' compensation law, exclusive of nonoccupational disability benefits.' As explained in Waggaman v. Northwestern Security Ins. Co. (1971) 16 Cal.App.3d 571, 575, 94 Cal.Rptr. 170 (Waggaman ), this provision authorizes insurers to include in automobile policies clauses mandating the reduction of UM benefits to reflect workers' compensation benefits. However, the Legislature has enacted no statute permitting automobile insurers to impose liens on workers' compensation benefits in order to recover excessive UM benefit payments. (Rangel, supra, 4 Cal.4th at pp. 9-11, 15, 14 Cal.Rptr.2d 783, 842 P.2d 82.) Section 11580.2 also imposes a stay of arbitration regarding UM benefit disputes until specified circumstances occur relating to a workers' compensation claim. (Rangel, supra, 4 Cal.4th at p. 8, 14 Cal.Rptr.2d 783, 842 P.2d 82.) Subdivision (f) of the statute provides: 'If the insured has or may have rights to benefits, other than nonoccupational disability benefits, under any workers' compensation law, the arbitrator shall not proceed with the arbitration until the insured's physical condition is stationary and ratable. In those cases in which the insured claims a permanent disability, the claims shall, unless good cause be shown, be adjudicated by award or settled by compromise and release before the arbitration may proceed.'1 (§ 11580.2, subd. (f).) Our Supreme Court has explained that in 1973, the Legislature enacted the arbitration stay provision to prevent a type of arbitration-facilitated double recovery identified in Waggaman. (Rangel, supra, 4 Cal.4th at p. 9, 14 Cal.Rptr.2d 783, 842 P.2d 82.) Case, 30 Cal.App.5th 403–404.

It is undisputed that the date of incident at issue was August 11, 2020, and that Claimant has not submitted a workers' compensation claim to Thompson Distributing. As such, Claimant is now time-barred from filing a workers' compensation claim. Labor Code § 5400. In this circumstance, there is no potential for a double recovery.

To the extent Ohio Specialty relies on an exclusion similar to that in Bailey v. Interinsurance Exchange (1975) 49 Cal.App.3d 399, the issue of whether 'the policy excludes coverage for an injury for which the insured is eligible for workmen's compensation benefits' [Bailey, 49 Cal.App.3d at 404] is an issue is for the arbitrator to decide.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue Calendar No.: Event ID: TENTATIVE RULINGS

3100191 2 CASE NUMBER: CASE TITLE: OHIO SECURITY INSURANCE COMPANY VS LOPEZ [IMAGED] 37-2023-00021929-CU-PT-CTL the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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