Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Super. Ct. No. S-1500-CV-264781
Magwood Law Firm and Andrew A. Magwood for Plaintiff and Appellant.
Manning & Marder, Kass, Ellrod, Ramirez and Darin L. Wessel for Defendants and Respondents.
OPINION
CORNELL, Acting P.J.
Plaintiff Laura Koscki appeals from the judgment entered after the trial court granted the summary judgment motion of defendants Gerald Henry Herbert (Herbert) and Consolidated Freightways Corporation (Consolidated). Koscki contends the trial court erred because she presented sufficient evidence to create a triable issue of material fact. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Federal Court Proceedings
Koscki was a truck driver employed by Consolidated. On August 4, 2002, she was a passenger in a tractor being driven by fellow employee Herbert when Herbert apparently fell asleep and drove off the road. Koscki sustained serious and disabling injuries as a result of the accident. She blames Consolidated for causing the accident because she deems the working conditions under which she and the other employees were forced to work were unsafe.
On September 3, 2002, Consolidated filed a voluntary petition for bankruptcy under Chapter 11 of the United States Bankruptcy Code. Koscki began pursuing Consolidated in the bankruptcy court where she filed a proof of claim and two amendments seeking wages and benefits, unpaid medical expenses, workers’ compensation benefits, and damages for “‘personal injury/wrongful death’ and ‘civil rights & fraud.’”
In July 2004, almost two years after the accident, Koscki filed an adversary proceeding stating 22 claims for relief and seeking damages in the amount of $240 million. Koscki included in her adversary complaint claims titled sexual harassment, respondeat superior, negligence, pain and suffering, emotional distress, hostile environment, lost earnings and future employment, and fraudulent concealment aggravating injury.
Consolidated filed a motion to dismiss the adversary complaint alleging the various causes of action were barred by the applicable statute of limitations. The district court granted the motion, in part, dismissing many of the claims with prejudice. Among the dismissed claims were the claims for negligence, emotional distress, and wrongful termination. The district court ordered Koscki to file a more definite statement for numerous other causes of action because they were “so vague or ambiguous that the Court cannot ascertain the nature of the claim being asserted and Defendant cannot reasonably be required to frame a responsive pleading.”
Koscki did not respond to the district court’s order in a timely manner, resulting in the court issuing an order to show cause why the adversary complaint should not be dismissed for failure to prosecute the action. In response, Koscki filed a dismissal with prejudice of the entire action, which the district court ordered on February 22, 2005. The dismissal reserved Koscki’s “right to pursue administrative remedies via the California Fair Housing and Employment Commission, the Equal Employment Opportunity Commission, and the National Labor Relations Board.”
On December 19, 2005, Koscki filed a notice of appeal, which the Ninth Circuit Court of Appeals deemed to be an appeal from the order denying Koscki’s motion for reconsideration of the February 22, 2005, judgment. The Ninth Circuit affirmed the judgment, finding the district court did not abuse its discretion in denying Koscki’s motion for reconsideration.
State Court Proceedings
A. The complaint
The parties have not included a copy of the complaint in their appendices. From our nonpublished opinion (Koscki v. Herbert et al. (Oct. 12, 2007, F051098), to be discussed below, it appears that Koscki filed a form complaint alleging that Herbert’s negligent operation of the tractor caused her injuries. Herbert filed a motion for judgment on the pleadings, arguing that workers’ compensation benefits were Koscki’s exclusive remedy. The trial court granted the motion and denied Koscki the opportunity to amend the complaint.
Although the complaint contained two causes of action, they both merely alleged negligence without any attempt to state a separate cause of action.
B. The first appeal
Koscki appealed from the resulting judgment, arguing that she should have been granted leave to amend the complaint to plead around the bar of the workers’ compensation statutes. We agreed and reversed the judgment, although we expressed doubt that Koscki could prevail in the face of the statutory bar to her action.
C. The first amended complaint
Koscki’s first amended complaint named Herbert and Consolidated as defendants and contained a single cause of action for motor vehicle negligence. Koscki alleged she was injured in the course and scope of her employment when her coemployee, Herbert, negligently operated the tractor, causing her significant injuries. To avoid the exclusivity provisions of the workers’ compensation law, Koscki alleged that Consolidated did not have workers’ compensation insurance at the time of the accident. Koscki limited her claim to any insurance coverage that was available to avoid the automatic stay of the bankruptcy court.
D. Consolidated and Herbert’s motion for summary judgment
Consolidated and Herbert answered the first amended complaint and filed a motion for summary judgment. They argued they were entitled to judgment as a matter of law because Koscki was barred from recovering in tort for her injuries because of the exclusivity provisions of the Workers’ Compensation Act (Lab. Code, § 3200 et seq.), and the resolution of the federal court action barred the claims by either the doctrine of res judicata or the doctrine of collateral estoppel.
Consolidated and Herbert also moved for summary adjudication of issues in the event their motion for summary judgment was denied. Our resolution of the issue does not require us to discuss the motion for summary adjudication.
Koscki’s first amended complaint and opposition to the motion for summary judgment focused only on the potential liability of Consolidated. Koscki did not allege her action against Herbert was not precluded by Labor Code section 3601, subdivision (a). Similarly, Koscki does not address Herbert in her appeal. Therefore, we will affirm the judgment in favor of Herbert. Our discussion will be limited to the action against Consolidated.
In support of the motion, Consolidated filed a separate statement of undisputed material facts and supporting evidence that asserted (1) Koscki and Herbert were employed by Consolidated at the time of the accident; (2) Herbert was driving a tractor owned by Consolidated at the time of the accident; (3) Herbert drove the tractor off the side of the roadway; (4) Consolidated was insured for workers’ compensation at the time of the accident; (5) Koscki received workers’ compensation benefits as a result of the accident; (6) Koscki filed an adversary complaint against Consolidated seeking damages for her injuries; (7) the district court concluded the claims were barred by the applicable statute of limitations; and (8) the district court entered an order dismissing Koscki’s claims with prejudice except for reserved administrative remedies.
The evidence submitted by Consolidated to support the motion included the insurance policy that provided workers’ compensation insurance for Consolidated at the time of the accident and various documents from the bankruptcy proceedings described above.
E. Koscki’s opposition
Koscki, appearing in propria persona, argued that Consolidated was not properly insured as required by the Workers’ Compensation Act. The basis for her argument, as we understand it, was the assertion that some of the checks for her injuries that were issued under the guise of workers’ compensation reimbursement were not paid by the bank. The records provided by Koscki indicated that two checks were refused. The checks were issued on August 16, 2002, and August 30, 2002. Consolidated filed for bankruptcy protection on September 3, 2002. The notices attached to the returned checks indicated that payment was stopped on these checks on or about September 12, 2002, and September 20, 2002. Koscki wrote in her opposition that Consolidated “tried to reimburse [her] for the bounced checks in the year of 2004, but never fully did.” Koscki included in the documents attached to her opposition a computer-generated listing of disability payments she apparently received during the time period from June 2004 to April 2006.
In addition to her written opposition, which was subscribed to under penalty of perjury, Koscki also submitted a declaration. The declaration stated a long list of grievances ranging from accusing Consolidated of engaging in unfair business practices to imposing unsafe driving conditions on its employees and to abysmal safety practices. While the events leading up to the accident and the injuries sustained by Koscki were discussed, the declaration completely omitted any facts related to the issue presented by the motion.
Koscki did not include a response to Consolidated’s separate statement of material facts as required by Code of Civil Procedure section 437c, subdivision (b)(3).
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
F. Consolidated’s reply
Consolidated’s reply focused primarily on the lack of evidence to oppose the facts it submitted in support of the motion. In addition, Consolidated posed objections to the materials submitted by Koscki. Consolidated objected to Koscki’s declaration in its entirety as violative of section 437c, subdivision (d), as well as lacking in foundation. It also objected to various exhibits submitted by Koscki as lacking in relevance, as inadmissible hearsay, and on the ground that Koscki failed to provide a foundation to establish the documents were as claimed by Koscki.
G. Koscki’s motion for reconsideration
The hearing on the motion was held on November 17, 2008. It appears that the trial court orally granted the motion at the hearing. It also appears, however, that before the order granting the motion was signed, Koscki filed a motion for reconsideration pursuant to section 1008, which the trial court decided to consider before ruling on Consolidated’s motion.
Koscki claimed that a document attached to her motion established that Consolidated was not self-insured at the time of her accident. She also claimed additional time was needed so she could subpoena records from Consolidated’s workers’ compensation insurance carrier. Koscki submitted various documents, including a letter of interest. This letter was sent to Koscki by Sedgwick Claims Management Services, Inc. (Sedgwick). The letter was dated September 6, 2002, three days after Consolidated filed its bankruptcy petition. The letter explained that Sedgwick acted as the third party administrator for Consolidated’s workers’ compensation claims. Sedgwick denied insuring the claims, but explained it “only processes such claims with funds provided by [Consolidated].… The check that you may have received in payment of your claim may not be honored because [Consolidated] filed the bankruptcy petition. [¶] We are investigating whether other funding sources, such as insurers or state funds, may be available to replace the check that you hold.”
H. Consolidated’s opposition to the motion for reconsideration
Consolidated pointed out that all of the documents offered by Koscki were available to her well before her opposition to the motion for summary judgment was filed. It also argued the documents did not provide grounds for denial of the motion, even if the trial court should consider them.
Consolidated also filed objections to Koscki’s declaration, asserting that her assertions of fact lacked foundation, were hearsay, and, in many instances, were irrelevant.
I. Koscki’s reply
Koscki, represented by counsel for the first time since the remand of this action, argued there was sufficient evidence to create a triable issue of fact about Consolidated’s workers’ compensation insurance status. She relied on her papers establishing that Consolidated was not self-insured in California at the time of the accident. But in making this argument, she admitted she received over $23,000 in payments from Consolidated’s insurer, United States Fidelity & Guaranty. Koscki argued that these payments may have come from a pool of funds and the insurer may have acted merely as an administrator. There was no evidence offered to suggest this was the case.
J. The trial court’s ruling
The trial court began by denying Koscki’s request to continue the hearing on the motion to allow additional discovery because it failed to meet the requirements of section 437c, subdivision (h). The trial court next granted Consolidated’s motion “in its entirety.” It also sustained Consolidated’s evidentiary objections to Koscki’s proposed evidence. The trial court found that Koscki’s action was barred by the exclusivity provisions of the Workers’ Compensation Act because Consolidated was insured on the date of the accident. The trial court also found that Koscki’s claims were barred by the doctrines of res judicata and collateral estoppel because her complaint in federal court was dismissed with prejudice. Finally, the trial court, by separate order, denied Koscki’s motion for reconsideration as failing to comply with the requirements of section 1008, subdivision (a). The trial court sustained Consolidated’s objections to the additional evidence offered by Koscki. Judgment was entered accordingly.
DISCUSSION
Koscki appeals from the judgment entered in favor of Consolidated. She admits the accident occurred during the course and scope of her employment and, if Consolidated was properly insured, her action is barred by the exclusivity provision of the workers’ compensation statutes. She argues, however, that she presented enough admissible evidence to create a triable issue of fact about the status of Consolidated’s workers’ compensation insurance at the time of the accident. She also argues the federal court proceedings do not have any preclusive effect and therefore the trial court erred in finding her action barred by the principles of collateral estoppel and res judicata.
Law Applicable to Summary Judgment Appeals
A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) The trial court must consider all of the evidence set forth in the papers submitted to it, except for the evidence to which objections have been made and sustained. (Ibid.) Evidentiary objections not made at the hearing are waived. (Id., subd. (b)(5).) The trial court also must consider all inferences that reasonably can be deduced from the evidence. (Id., subd. (c).) Summary judgment, however, may not be based on an inference that is contradicted by other inferences or evidence. (Ibid.)
The standard we employ in reviewing the judgment after a successful motion for summary judgment is well established. We apply the same three-step analysis as the trial court. First, we identify the issues raised by the pleadings, since the pleadings frame the issues the motion must address. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 602.) Second, we examine the papers of the moving party to determine if they have presented facts that would justify entering judgment in that party’s favor. (Ibid.) Third, if the moving party has made a sufficient showing, we examine the papers of the opposing party to determine whether that party has submitted evidence to establish a triable issue of a material fact. (Ibid.)
We review the judgment de novo. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092 (Howell).) It is the appellant’s burden to establish that the trial court erred. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) We limit our review to those issues that the appellant presents and that are supported by adequate authority and citations to the record. (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.) Like the trial court, we consider all of the evidence submitted and the inferences that reasonably can be deduced therefrom, except that evidence to which objections have been made and sustained. (Howell, at p. 1092.) We independently review the evidence to determine whether there are any disputed material facts and whether the moving party is entitled to judgment as a matter of law. (Ibid.) We review the trial court’s ruling, not its rationale. (Ibid.)
Analysis
The pleadings
The first step in our analysis is determining what issues were raised by the pleadings. Koscki’s complaint contained a single cause of action alleging she was injured in a motor vehicle accident during the course and scope of her employment when her coemployee, Herbert, negligently operated the vehicle. Koscki alleged that Consolidated was not insured at the time of the accident and therefore her action was not barred by the exclusivity provisions of the workers’ compensation statute. Consolidated answered, alleging, among other defenses, that Koscki’s action was barred by the exclusivity provisions of the workers’ compensation law.
B. Consolidated’s evidence and entitlement to judgment
Consolidated’s motion asserted that it was entitled to judgment as a matter of law because it was insured at the time of the accident for injuries incurred by employees during the course and scope of their employment.
“The workers’ compensation system is designed to (1) provide an employee with prompt, limited compensation for an injury, (2) insulate the employer from tort liability for work-related injuries, (3) shift the cost of industrial injuries to the cost of the goods produced, and (4) encourage workplace safety. [Citations.] [¶] In general, the Workers’ Compensation Act provides an employee with his or her exclusive remedy for a work-related injury. Subject to narrow exceptions … an injured employee cannot maintain a civil action against his or her employer [citation] or another employee [citation].” (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 443.) Labor Code section 3602, subdivision (a) provides that the exclusive means for an injured employee to recover against the employer is the Workers’ Compensation Act, subject to certain exceptions. The exception at the heart of this case is found in Labor Code section 3706, which provides that if an employer fails to secure payment of compensation for an employee’s injuries, then the employee may recover damages against the employer.
As evidence to support its argument, Consolidated provided undisputed evidence that Koscki and Herbert were employed by Consolidated at the time of the accident and that the accident occurred during the course and scope of their employment. To establish the inapplicability of Labor Code section 3706, Consolidated submitted its workers’ compensation and employer’s liability policy. The submitted policy and endorsements consisted of over 400 pages. We will refer to only the relevant portions.
Koscki suggests that the policy was not properly authenticated and should have not been considered by the trial court or by us. Any possible objection to the policy, however, has been forfeited because Koscki failed to object to the introduction of the policy in the trial court. (§ 437c, subd. (b)(5).)
The declarations page shows that the policy was in effect from October 1, 2001, through October 1, 2002. Koscki’s accident occurred on August 4, 2002, within the policy period. The declarations page also shows that Consolidated was insured for workers’ compensation insurance in California and numerous other states. Since Koscki’s accident occurred in California, this appears to be the applicable policy.
The insuring agreement stated that the insurance applied to bodily injury by accident that occurred during the policy period, and that the insurance company would pay the benefits required by the workers’ compensation law for each state named in the declarations page, which includes California.
The policy was amended by a self-funded retention endorsement for California. This endorsement stated that the insurance available to Consolidated for workers’ compensation claims was reduced by $2 million for each accident. This self-funded retention required Consolidated to pay all indemnity and medical benefits required to be paid under the applicable workers’ compensation law to each employee who was injured in the course and scope of employment. In other words, Consolidated was obligated to pay up to $2 million in claims and expenses for each accident covered by the workers’ compensation law in California before the insurance company was required to make any payments to an injured employee.
This endorsement, however, also contained a provision that is significant in this case. This provision stated, “Nonpayment of deductible amounts by you will not relieve us from payment of compensation for injuries sustained by an employee during the policy period.” In other words, if Consolidated defaulted in its obligation to pay benefits under the California workers’ compensation law, then the insurance company would be obligated to pay those benefits.
This evidence adequately established that Consolidated was insured for injuries incurred by its employees during the course and scope of their employment as required by the Workers’ Compensation Act. Accordingly, Consolidated was entitled to judgment as a matter of law.
C. Koscki’s response
Koscki asserts here, as she did in the trial court, that she submitted sufficient evidence to create a triable issue of fact on the issue of whether Consolidated had properly secured compensation for her injuries. Even if we ignore the exclusion of the proffered evidence by the trial court, there is no factual basis for her assertions. Koscki relies on a misreading (or misunderstanding) of Consolidated’s workers’ compensation policy, and a misinterpretation (or misunderstanding) of the facts she finds relevant.
We begin by noting that Consolidated and Herbert objected to the documents submitted by Koscki, and the trial court sustained those objections. Koscki’s argument could be rejected on this basis alone because she did not provide any admissible evidence that could create a triable issue of fact.
Nevertheless, we will consider the proffered evidence to demonstrate the complete lack of merit to Koscki’s argument, and for that purpose only. First, Koscki relies on her statement that Consolidated “‘was self-insured and in bankruptcy.’” While it is true that Consolidated had filed a bankruptcy petition, it was not self-insured, and Koscki does not have any evidence to suggest otherwise. It is apparent that Koscki confuses Consolidated’s self-funded retention with self-insurance. The most significant difference between the two, for our purposes, is that the California self-funded retention endorsement obligated the insurer to pay all claims, even if Consolidated failed to pay the $2 million retention (deductible).
Next, Koscki relies on her statement that “‘Self-insured employers are normally covered by an endorsement to their general liability policy, however, those checks bounced from USF & G 3rd party administrator.’” (Bold omitted.) This statement does not make sense.
First, Consolidated was not self-insured.
Second, self-insured employers are required to pay all workers’ compensation claims with their own funds. They do not obtain workers’ compensation coverage through an endorsement to their general liability policy.
Third, the third party administrator to whom Koscki referred was not the insurer’s administrator, but was Consolidated’s administrator. In the letter dated September 6, 2002, Sedgwick, the third party administrator to whom Koscki refers, informed Koscki that it “has acted as the Third Party Administrator for certain of [Consolidated’s] liability and workers compensation claims. As a Third Party Administrator, Sedgwick CMS does not insure [Consolidated’s] claims, but only processes such claims with funds provided by [Consolidated].” This letter went on to explain to Koscki that because of Consolidated’s bankruptcy filing, the “check that you may have received in payment of your claim may not be honored because [Consolidated] filed the bankruptcy petition.” The two bounced checks to which Koscki referred were the result of the factors discussed in this letter. Koscki also admitted that someone “tried to reimburse [her] for the bounced checks in the year 2004, but never fully did.”
The following reasonably and logically can be inferred from these facts. Consolidated had a $2 million self-funded retention on its workers’ compensation policy that required it to pay up to that amount for each workers’ compensation claim. To meet these obligations, Consolidated hired Sedgwick to administer the claims by ensuring that the claims that were presented were actual claims and that the employee received the treatment and benefits to which he or she was entitled. Sedgwick would then receive funds from Consolidated to pay for the treatment and benefits, as well as some fee for its services.
When Consolidated filed its bankruptcy petition, all funds held by Sedgwick that belonged to Consolidated were frozen, thus the two checks issued to Koscki bounced. After Consolidated’s bankruptcy petition was filed, the insurer was required to pay the benefits to which Koscki was entitled. That is why Koscki received benefits after the bankruptcy petition was filed and why “attempts” were made to reimburse her for the two bounced checks. If Koscki believed she did not receive complete reimbursement for the bounced checks, she should have addressed the issue with the insurer. It is not evidence that Consolidated was not insured at the time of Koscki’s accident.
Koscki also relies on a document that purported to show that Consolidated had its self-insured status revoked in 1996. Assuming this document is authentic, it does not aid Koscki because Consolidated was insured at the time of her accident.
The final piece of evidence to which Koscki refers is the letter Consolidated sent to its employees advising them that because of economic conditions it was ceasing operations. The letter, dated September 2, 2002, informed Koscki that one of Consolidated’s bondholders cancelled coverage related to Consolidated’s self-insurance programs, including workers’ compensation. As the insurance policy established, Consolidated was not self-insured in California. It had a self-funded retention, which, undoubtedly, required Consolidated to obtain surety bonds to ensure that Consolidated met its retention obligations. When these bonds were cancelled, Consolidated no longer could meet its contractual obligations imposed by the self-funded retention policies. The reference to self-insurance does not change the fact that Consolidated was insured in California for injuries suffered by an employee in the course and scope of its employment.
Koscki also argues that because Consolidated had a self-funded retention of $2 million, it was for all intents and purposes self-insured. According to Koscki, when Consolidated filed its bankruptcy petition, it failed to secure payment for its workers’ compensation obligations, in violation of Labor Code section 3706. This argument also fails.
We first note that all of the evidence in the record suggests that Koscki was compensated for her injuries, with the exception of the two checks that bounced shortly after Consolidated filed its bankruptcy petition. And, as Koscki admitted, attempts were made to reimburse Koscki for these payments, although Koscki found the attempts unsatisfactory.
We also note the definition of “self-insured retention” cited by Koscki, while undoubtedly accurate, does not supersede the terms of the policy itself. As explained above, while Consolidated was responsible for the first $2 million in expenses and reimbursement for Koscki’s injuries, the insurance company also was responsible for all expenses and reimbursement related to Koscki’s injuries if Consolidated failed to meet its self-funded retention obligations. For this reason, viewed properly, Consolidated’s self-funded retention was not the equivalent of being self-insured.
Finally, the cases on which Koscki relies are inapposite. First, Koscki cites to footnote 1 in Roth v. L.A. Door Co. (2004) 115 Cal.App.4th 1249 (Roth), a decision from the Fourth District Court of Appeal. This footnote notes an inconsistency in the record about whether the employer was self-insured or had a workers’ compensation insurance policy with a self-insured retention. The court stated in the footnote that the “judgment implies a finding that [employer] was ‘a permissively self-insured employer, ’ and there is substantial evidence to support that finding. [Citation.]” (Id. at p. 1252, fn. 1.)
We do not see the relevance of this finding to the facts of the case here. Roth was injured in the course and scope of his employment. Employer paid Roth workers’ compensation benefits. Roth then sued L.A. Door in tort, alleging it negligently manufactured the trailer door that had caused Roth’s injuries. L.A. Door submitted the claim to its liability insurer. The insurer became insolvent and the claim was transferred to the California Insurance Guarantee Association (CIGA). Employer filed a complaint in intervention seeking reimbursement for the sums it paid as workers’ compensation benefits to Roth. The issue in the case was whether the self-inured employer was eligible under the applicable statutes to submit a claim to CIGA under these circumstances. The appellate court held that an employer who is self-insured for workers’ compensation is an insurer under the meaning of the statutes related to CIGA and cannot recover from CIGA. (Roth, supra, 115 Cal.App.4th at p. 1260.) The case does not suggest, or even imply, that an employer with a self-insured retention is self-insured for all purposes.
Nor does Black Diamond Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109 (Black Diamond) assist Koscki’s argument. Black Diamond leased two trailers to Jesus Garcia Adames and entered into a contract for Adames to haul material for it. The contract required Adames to obtain insurance, include Black Diamond as an additional named insured on the policy, and required Adames to indemnify and hold Black Diamond harmless for any damages that Adames might cause. Adames was involved in an accident, and the injured parties named Black Diamond as a defendant on the theory that Adames was its employee. Adames’s insurer became insolvent during the course of the litigation and CIGA undertook the insurer’s obligations. Black Diamond, which was self-insured for the first $1 million of litigation expenses and damages, sought to file a cross-complaint for indemnity against Adames. The trial court denied leave to do so, concluding that relevant statutes precluded Black Diamond from recovering against CIGA.
The appellate court disagreed. It began by noting that CIGA was created to protect the public from the insolvency of an insurer. CIGA was not created to protect solvent insurers from the insolvency of a fellow insurer. As a condition of conducting business in California, each insurer is required to participate in the association. In the event of an insurer’s insolvency, CIGA assumes the liabilities of the insolvent insurer up to a statutory maximum. CIGA, however, will not pay a claim that will inure to the benefit of another insurer. (Black Diamond, supra, 114 Cal.App.4th at pp. 115-116.)
From these principles, it is easy to see the issue presented in Black Diamond and Roth. In both cases, the question was whether the employer seeking recovery from CIGA was considered an insurer under the CIGA statutes, and thus precluded from any recovery from CIGA. In Roth, the appellate court concluded that an employer self-insured under the workers’ compensation statutes was an insurer under the CIGA statutes, primarily because Labor Code section 3211 classifies such an employer as an insurer. (Roth, supra, 115 Cal.App.4th at p. 1259.)
In Black Diamond, the appellate court held that Black Diamond was not an insurer under the statutes, but was a member of the public that CIGA was designed to protect. (Black Diamond, supra, 114 Cal.App.4th at pp. 118-120.) The appellate court referred to Black Diamond’s $1 million liability as a self-insured retention at one point in the opinion (id. at p. 118), but it appears it would be more accurate to state that Black Diamond was self-insured for that amount. Black Diamond had an insurance policy that would participate only if the claim exceeded $1 million. The proper phrase to be used to describe Black Diamond, however, is not significant. The point is that because there was no statute that classified Black Diamond as an insurer, the appellate court concluded it could proceed directly against CIGA. (Id. at p. 120.)
Black Diamond and Roth both addressed questions of the application of statutes strictly related to CIGA. Koscki’s claim does not require application of those statutes. These cases do not stand as authority for the proposition that Consolidated was self-insured under the policy at issue.
CONCLUSION
Consolidated was insured as required by the Workers’ Compensation Act. Accordingly, Koscki is barred by Labor Code section 3602, subdivision (a). Since Koscki did not present any evidence or argument to suggest her injuries exposed Herbert to personal liability, Koscki’s action against Herbert is barred by Labor Code section 3601, subdivision (a). The trial court properly granted Consolidated and Herbert’s motion for summary judgment. This conclusion renders arguments related to the doctrines of res judicata and collateral estoppel moot.
DISPOSITION
The judgment is affirmed. Consolidated and Herbert are awarded their costs on appeal.
WE CONCUR: GOMES, J.KANE, J.