Judge Kerry Bensinger, Case Number: 22STCV17410, Date: 2023-08-08 Tentative Ruling

On May 26, 2022, Plaintiff, Barbara Dailey, brought this action against Defendants, Los Angeles World Airport, HMSHost Corporation, and Starbucks Corporation, asserting causes of action for negligence and dangerous condition of public property. Plaintiff alleges on June 23, 2021, while she was waiting to pick up an arriving passenger at LAX Terminal 4, she tripped and fell over an unattended cart that was delivering items to Starbucks. Plaintiff was injured while performing duties in the course of her employment with Seasons Recovery Center, LLC (“Seasons”). At the time of the incident, Seasons was insured for the purposes of workers’ compensation liability by American Family Home Insurance Company (“American Family”)[1].

On September 7, 2022, American Family filed a motion for leave to file a complaint-in-intervention. The motion was heard on January 5, 2023. The Court found that the declaration of counsel offered by American Family to establish American Family’s obligations to Plaintiff and Seasons lacked personal knowledge. The Court continued the motion to allow American Family to submit competent evidence demonstrating its right to intervene. However, American Family failed to file a supplemental declaration. As such, the Court denied the motion without prejudice on February 2, 2023.

On February 10, 2023, American Family filed this motion for leave to file a complaint-in-intervention.

“A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” (Code Civ. Proc. § 387, subd. (c).)

“The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(B)¿The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”

Where an employee brings an action for damages proximately caused by a third person, an employer who pays or becomes obligated to pay compensation, or salary in lieu of compensation, may likewise make a claim or bring an action against the third person. (Lab. Code § 3852.) “[T]he employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents.” (Ibid.)

“A workers’ compensation carrier is authorized to attempt recovery of benefits paid either through the maintenance of an independent action (Lab. Code § 3852), intervention in the employee’s action (Lab. Code § 3853), or assertion of lien rights in the employee’s recovery (Lab. Code § 3856, subd. (b).)” (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1015, fn. 7.)

If leave to intervene is granted by the court, the intervenor shall separately file the complaint in intervention and serve notice of the court’s decision” to parties who have appeared. (Code Civ. Proc. § 387, subd. (e).)

Upon review of the motion, the Court finds that American Family has submitted competent evidence demonstrating its right to intervene. Petitioner offers the declaration of Beth Mayer, a Senior Subrogation Claims Specialist with American Claims Management (“ACM”)[2], to show that American Family, under provisions of the Workers’ Compensation Insurance and Safety Act of California, has become obligated to pay and has paid to Plaintiff workers’ compensation benefits. (See Declaration of Beth Mayer, ¶¶ 1, 3.) American Family has cured the defect noted in the January 5, 2023 order.

The motion is granted. Intervenor is ordered to file its Complaint-in Intervention within five (5) court days of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Administered by American Claims Management.

[2] ACM was the third party administrator for American Family, and was responsible for the reporting of, investigation of and administration and payment of benefits for workers’ compensation benefits under the policy of insurance afforded to Seasons. (Meyer Decl., ¶ 1.)