Opinion
Rehearing Denied Nov. 9, 1971.
Opinion on pages 552 to 569 omitted
HEARING GRANTED
For Opinion on Hearing, see 102 Cal.Rptr. 815, 498 P.2d 1063.
[97 Cal.Rptr. 831] Everett E. Demler, Long Beach, for plaintiff and appellant.
Ball, Hunt, Hart, Brown & Baerwitz and Stephen A. Cirillo, Long Beach, and Sikes, Pinney & Matthew, North Hollywood, for Truck Insurance Exchange, Farmers Insurance Group and Robert O. Wishman.
Robert E. Perkins, Jr., Los Angeles, for William R. Baker.
FORD, Presiding Justice.
Plaintiff has appealed from separate orders of dismissal of her second amended complaint as to Truck Insurance Exchange, Farmers Insurance Group and Robert O. Wishman, and as to William R. Baker, entered after the sustaining of demurrers without leave to amend.
The action was filed in the superior court on March 4, 1965.
Material allegations contained in plaintiff's second amended complaint were as follows: 1. The defendants were 'the agents, servants and employees of each other, and were acting within the scope of and pursuant to such agency and employment.' 2. The defendants Truck Insurance Exchange and Farmers Insurance Group were insurance companies 'engaged in the Workmen's Compensation Insurance industry and multiple other insurance fields.' 3. The defendants William Baker and Lawrence Marino were individuals or partners engaged in the business of investigating industrial accident claims. 4. 'That DOES I through X were * * * engaged in the business of investigating and processing industrial accident claims and in representing defendants in matters before the Industrial Accident Commission.' 5. 'That on or about March 31, 1960, plaintiff injured her back while working for an employer insured under the Workmen's Compensation Laws of the State of California by the defendants [sic] Truck Insurance Exchange. * * * At all times alleged herein defendants, and each of them, had knowledge of plaintiff's physical and mental condition and medical history$.' 6. 'That on or before April 10, 1964, the defendants and their employees * * * placed the defendant under surveillance in the City of Long Beach. That defendant William Baker * * * befriended the plaintiff and did * * * misrepresent his capacity and his intentions toward the plaintiff. That on or about April 10, 14, 15, 21, 24 and 26, 1964, and at other times, for the purpose of obtaining motion pictures of the plaintiff, the said defendants * * * did entice and cause the plaintiff to conduct herself in a manner beyond her usual and normal physical capabilities, and in more particular, did entice the plaintiff to visit Disneyland * * * with WILLIAM BAKER, in the unseen presence of the defendant LAWRENCE MARINO, caused plaintiff to cross a rope bridge and a barrel bridge, and that said defendants did wilfully and intentionally violently shake and disturb said bridges and the physical person of the plaintiff, and the defendants did at said place cause the plaintiff to engage in other activities so as [97 Cal.Rptr. 832] to aggravate and injure the plaintiff.' 7. Plaintiff was caused by defendant Baker to become emotionally interested in defendant Baker, 'all at his insistence and invitation and solely for the purpose of his investigation.' 8. At a hearing before the Industrial Accident Commission on April 30, 1964, the defendants 'negligently exhibited motion pictures of plaintiff taken while under surveillance,' and that upon 'learning of the ruse and deception practiced upon her by the defendants, * * * plaintiff suffered a mental and physical breakdown, necessitating hospitalization. * * *'
In the second amended complaint the plaintiff pleaded causes of action based on theories of negligence, assault, conspiracy and intentional infliction of emotional distress and, alleging that defendants' conduct was willful and malicious, claimed punitive damages. The demurrers to the second amended complaint were sustained without leave to amend on the ground that the Industrial Accident Commission (now the Workmen's Compensation Appeals Board) had exclusive jurisdiction of the subject matter of the action. (Code Civ.Proc., § 430, subd. 1.)
No evaluation of the sufficiency of plaintiff's pleading need be undertaken on this appeal.
In ruling on the demurrers the trial court took judicial notice of the contents of the superior court file and of the proceedings theretofore had in the superior court. The particular matters of which judicial notice was taken were set forth in the minute order of February 5, 1970, as follows: 'In the Referee's 'report on petition for reconsideration' we find 'It has been decided by said award that applicant's psychiatric disturbance following the hearing of April 30, 1964 was related to the injury,' and in the said Referee's 'Report on Supplemental Findings * * *' 'There can be no reasonable doubt that applicant's reaction to the events of the hearing of April 30, 1964 was directly related to the injury in such manner as to be compensable'.'
It should be noted that in the report of March 31, 1965, to which the court referred, immediately following the portion quoted it was stated: 'Said Award was not contested and is final.' The award to which reference was made was the award of August 20, 1964.
The initial contention of plaintiff on this appeal is that the trial court erroneously ordered her to file the second amended complaint, thus reviving defendants' right to demur. However, a lengthy examination of the propriety of the court's order is unnecessary in the light of the fact that the ground urged in the demurrer was lack of jurisdiction of the subject matter. The objection that the court does not have jurisdiction is not waived by the failure to assert such objection by demurrer or answer. (Code Civ.Proc., § 434.) 'Lack of subject matter jurisdiction is not waived by failure to demur, but can be attacked by motion or suggestion at any time during trial or on appeal, or by application for an extraordinary writ, and even by collateral attack in most cases.' (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 819, p. 2427.)
The purpose of the court was to have embodied in one pleading the plaintiff's first amended complaint and the amendment or amendments thereto.
Since the defendants could have raised the objection as the lack of jurisdiction of the subject matter at any time during the proceedings and the court would, upon determining that it lacked jurisdiction, have been required to dismiss the action, it cannot be said that if there was error in allowing [97 Cal.Rptr. 833] the defendants to so demur, such procedural error resulted in a miscarriage of justice. (See Cal.Const., art. VI, § 13.)
Plaintiff also contends that in ruling on the demurrer the court improperly took judicial notice of the determination made by the referee as to the extent to which the injuries caused by the investigative conduct in question were compensable under the Workmen's Compensation Act. Plaintiff asserts that she was neither given proper notice of the taking of judicial notice nor the opportunity to present relevant information to the court.
Section 453 of the Evidence Code provides in pertinent part: 'The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; * * *' (Emphasis added.) Section 431.5 of the Code of Civil Procedure provides: 'When the ground of demurrer is based on a matter of which the court may take judicial notice pursuant to Sections 452 or 453 of the Evidence Code, such matter must be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice, except as the court may otherwise permit.' (Emphasis added.)
The defendants did not request the court to take judicial notice in their demurrers or points and authorities. However, at the proceedings held on January 30, 1970, the defendants did inform the court of the fact that the plaintiff had received workmen's compensation benefits and that evidence thereof was in the court file. The court then commented: 'You should ask the Court to take judicial notice by furnishing me with the information, if that element was present, by which I recognize there was a hearing, that these pictures were produced; that the Referee had all that information before he made the determination, before the C & R was approved.'
Section 455 of the Evidence Code provides in part: 'With respect to any matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action: (a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity * * * before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.'
It is to be noted that the plaintiff's attorney had at an earlier date incorporated the entire file of the workmen's compensation proceedings and had set forth an extensive summary of that file in his opposition to a motion to dismiss. Furthermore, approximately four years prior to that, at a time when the same counsel was representing the plaintiff, copies of the specific documents of which judicial notice was taken were placed in the record by defense counsel. Clearly, then, counsel for the plaintiff was informed as to the contents of the record before the court and specifically of the matters of which it was proposed that judicial notice be taken. While there may not have been full compliance with the requirements of section 455 of the Evidence Code, counsel for the plaintiff was familiar with the documents involved and did have an opportunity to oppose the taking of judicial notice and to comment upon the tenor of the contents of those documents. Consequently, any error which did occur in this respect did not result in a miscarriage of justice.
The propriety of sustaining the demurrers without leave to amend as to defendants Farmers Insurance Group, Robert O. Wishman and William R. Baker will be considered prior to a determination of that issue with respect to defendant Truck Insurance Exchange.
'Workmen's compensation contemplates a substitution of the contractual rights and [97 Cal.Rptr. 834] obligations which normally flow between worker and employer with a complete and exclusive statutory scheme based not upon contract but upon status.' (Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 733, 342 P.2d 976, 977.) In section 3601 of the Labor Code the exclusive nature of the workmen's compensation scheme is expressed as follows: 'Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is * * * the exclusive remedy for injury or death of an employee against the employer * * *.' The scope of this exclusivity is circumscribed substantially within the limits of the employer-employee relationship by section 3852, which provides in part: 'The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. * * *' (Emphasis added.) The scope of the term 'employer' as used in section 3852 is defined in section 3850 to include an insurer.
Hereinafter, all section references will be to the Labor Code unless otherwise indicated.
Assuming arguendo that the superior court was correct in its determination that it did not have jurisdiction in this case as to defendant Truck Insurance Exchange, a similar conclusion does not necessarily follow with respect to the other named defendants. Section 3852 preserves the employee's right to maintain a cause of action against persons other than the employer (insurer) despite a claim for compensation. (See Housewright v. Pacific Far East Line, Inc., 229 Cal.App.2d 259, 268, 40 Cal.Rptr. 208).
The general principles of the law of agency establish the independent liability of an agent for his tortious acts. '[A]n agent or other employee, merely because of his relationship as an agent or employee, or because of the additional fact that he has acted at the direction or command of his employer, cannot escape or exempt himself from liability to a third person for his own negligence or his own positive wrongs, such as a trespass, an assault, * * * or other form of tortious conduct.' (3 Am. Jur.2d, Agency, § 300, p. 661.) Furthermore, as stated in James v. Marinship Corp., 25 Cal.2d 721, at pages 742-743, 155 P.2d 329, at page 341: 'The true rule is, of course, that the agent is liable for his own acts, regardless of whether the principal is liable or amenable to judicial action.'
The plaintiff has noted that it could be argued that the employees of an insurer are immune from liability in an action at law to the same extent as coemployees. This contention, as will be explained below, is untenable.
Section 3601, subdivision (a), provides in major part: 'Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is * * * the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment, except that an employee * * * shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against such other employee, as if this division did not apply, in the following cases: (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of such other employee. (2) When the injury or death is proximately caused by the intoxication of such other employee. (3) When the injury or death is proximately caused by an act of such other employee which evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury or death to such employee.'
The immunity afforded an employer and coemployees of an injured employee by section 3601 of the Labor Code does not extend to insurers or employees of insurers. The applicable definition of employer as that term is used in section 3601 is set forth in section 3300 and does not include [97 Cal.Rptr. 835] insurer. Consequently, an insurer's immunity is not derived from section 3601 but emanates from a construction of sections 3850 and 3852. (See State Comp. Ins. Fund v. Superior Court, 237 Cal.App.2d 416, 419-420, 46 Cal.Rptr. 891.)
Section 3300 is as follows: 'As used in this division, 'employer' means: (a) The State and every State agency. (b) Each county, city, district, and all public and quasi public corporations and public agencies therein. (c) Every person including any public service corporation, which has any natural person in service. (d) The legal representative of any deceased employer.'
Section 3850 provides in part: 'As used in this chapter [chapter 5, entitled Subrogation of Employer, in which chapter section 3852 is located]: * * * (b) 'Employer' includes insurer as defined in this division.' Insurer is defined in section 3211 as follows: 'Insurer' includes the State Compensation Insurance Fund and any private company, corporation, mutual association, reciprocal or interinsurance exchange authorized under the laws of this State to insure employers against liability for compensation and any employer to whom a certificate of consent to self-insure has been issued.' It is clear from a literal reading of the statutes that the immunity afforded an insurer under section 3852 does not extend to the insurer's employees.
Section 6 of the Labor Code provides: 'Division, part, chapter, article, and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning, or intent of the provisions of any division, part, chapter, article, or section hereof.' See State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 46 Cal.Rptr. 891.
Furthermore, aside from the fact that the employees of the insurer could not have been the plaintiff's coemployees since the plaintiff was unemployed at the time of the torts alleged in the present case, support for this conclusion can be found by analogy to the scope of immunity provided by section 3601 prior to its amendment in 1959. Before that amendment, section 3601 merely provided: 'Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is * * * the exclusive remedy against the employer for the injury or death.' As noted in Saala v. McFarland, 63 Cal.2d 124, at page 127, 45 Cal.Rptr. 144 at page 146, 403 P.2d 400 at page 402: 'Prior to 1959 when section 3601 was amended, there was no doubt that the common law right of an employee to sue a coemployee for injuries negligently inflicted while on the job [citation] was preserved in this jurisdiction by section 3852.' Clearly, in the light of the rationale underlying our workmen's compensation system, the immunity of employees of an insurer is not greater than that relating to employees of an employer under former section 3601.
Since Truck Insurance Exchange was the only defendant alleged to have been the compensation insurance carrier, it is manifest that the other defendants are 'third persons' within the contemplation of section 3852. Consequently, it was improper to sustain the demurrers for lack of jurisdiction of the subject matter as to such other defendants.
Defendants state in their brief that Farmers Insurance Group 'is not a legal entity of any type.' Any question as to whether Farmers Insurance Group constitutes an entity for the purpose of being named as a party defendant may be hereafter raised in the superior court.
Turning to an examination of the propriety of sustaining the demurrer without leave to amend as to defendant Truck Insurance Exchange, it is to be noted that the liability of an insurance carrier for torts committed while engaged in the process of a non-medical investigation of a workmen's compensation claim has not previously been considered in California. The plaintiff contends that with respect to the torts alleged in the second amended complaint the defendant Truck Insurance Exchange is a 'third party' within the meaning of section 3852, which section preserves the employee's right of action for damages against 'any person other than the [97 Cal.Rptr. 836] employer' even if there is a claim for compensation. A review of pertinent principles with respect to the civil liability of insurance carriers for conduct with relation to workmen's compensation claims will be undertaken in order to develop the framework within which the present problem must be resolved.
In an 'Application For First Lien Against Judgment' filed in the present action on behalf of Truck Insurance Exchange it was stated that the 'lien claimant herein was required to furnish additional compensation and medical treatment for disability arising out of the events which form the basis for plaintiff's complaint herein, in the total sum of $110,994.61 for medical expense and $88,638.21 for disability benefits.'
In Fitzpatrick v. Fidelity Casualty Co., 7 Cal.2d 230, 60 P.2d 276, the Supreme Court determined that the aggravation of an industrial injury or the infliction of a new injury resulting from treatment or examination of the industrial injury are compensable under the provisions of the Workmen's Compensation Act and, therefore, within the exclusive jurisdiction of the Industrial Accident Commission (now the Workmen's Compensation Appeals Board). Consequently, the court determined that the plaintiffs were barred from proceeding in an independent action against the insurance carrier for negligence in allegedly removing and then replacing a cast upon decedent's back in such a manner as to cause the decedent's death.
In Noe v. Travelers Ins. Co., supra, 172 Cal.App.2d 731, 342 P.2d 976, the court decided that an industrial accident claimant could not maintain a cause of action against an insurance carrier for negligent delay in providing medical care because the Industrial Accident Commission had exclusive jurisdiction to afford relief for such lack of compliance with the duty of providing medical services.
In State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 46 Cal.Rptr. 891, it was held that an employee injured in the course of his employment could not maintain a common law cause of action for negligence against his employer's compensation insurer for the alleged negligence of the insurer in failing to fulfill the insurer's undertaking with the employer regarding safety inspections of the latter's plant since the Industrial Accident Commission had exclusive jurisdiction of the matter.
The only case in which the concept of a dual legal personality was applied so as to vest jurisdiction in the superior court in an action against a defendant who otherwise came within the term 'employer' as used in section 3852 is Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8. In Duprey it was held that an employer-doctor who treated the industrial injuries suffered by his employee was, as to such treatment, a 'person other than the employer' within the meaning of section 3852. The Supreme Court noted (39 Cal.2d at page 793, 249 P.2d at page 15), however, that 'the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic.' Furthermore, as stated in Deauville v. Hall, 188 Cal.App.2d 535, at page 546, 10 Cal.Rptr. 511, at page 518: 'Subsequent attempts to transform an employer or carrier into a 'third person' under Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 have met with little success, * * *.' (See Hazelwerdt v. Industrial Indem. Exchange, 157 Cal.App.2d 759, 321 P.2d 831; Nov v. Travelers Ins. Co., supra, 172 Cal.App.2d 731, 342 P.2d 976; State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 46 Cal.Rptr. 891; Wickham v. North American Rockwell Corp., 8 Cal.App.3d 467, 87 Cal.Rptr. 563.) Consequently, the plaintiff's contention must be viewed with great circumspection.
In State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 46 Cal.Rptr. 891, where, as has been noted hereinabove, the issue was the liability of an insurer for negligence as to the matter of safety inspections of an employer's premises, the court considered an argument akin to that advanced by the plaintiff herein [97 Cal.Rptr. 837] and stated (237 Cal.App.2d at page 420, 46 Cal.Rptr. at page 893): 'They [real party in interest and amici curiae] also argue (2) that when the whole philosophy of the law of workmen's compensation, insurance and safety is examined, the conclusion will be reached that actions such as this are outside the exclusive dominion of the Industrial Accident Commission because the insurer was not acting here as an insurer.' The court, however, determined that 'when an insurer assumes by contract the duty to inspect, it acts as an insurer * * *.'
The determinative question in the case last mentioned, State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 46 Cal.Rptr. 891, was whether an insurer acted as an insurer within the contemplation of the workmen's compensation legislation when undertaking to make safety inspections of the insured employer's premises. The inquiry in the instant case is whether an insurer acts as an insurer when it undertakes to investigate through nonmedical means the validity of a workmen's compensation claim by resort to conduct which involves the commission of a tort against the claimant.
The process of insuring is an integral part of our workmen's compensation system. (See State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 421, 46 Cal.Rptr. 891.) The use of motion pictures in workmen's compensation proceedings by the insurance carrier or its private investigators is permissible in instances in which such pictures are not procured through 'deceitful inducement of an applicant to engage in activities which he would not otherwise have undertaken.' (Redner v. Workmen's Comp. Appeals Bd., 5 Cal.3d 83, 94-95, 95 Cal.Rptr. 447, 455, 485 P.2d 799, 807.) Insurance companies must, as a matter of prudent business practice, investigate the validity of claims of all types. Clearly, in establishing an essential role for insurance carriers within the workmen's compensation scheme pursuant to article XX, section 21 of the California Constitution, the Legislature contemplated that insurers would continue in their practice of investigating the legitimacy of claims submitted to them. The ferreting out of fraudulent or otherwise unfounded claims is manifestly essential to the financial soundness of a compensation program.
In 1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed. 1970) § 18.01, it is stated: 'The California scheme of workmen's compensation Contemplates that benefits will, whenever possible, be paid voluntarily; * * * Necessarily, however, sufficient information must be available in each instance to make possible a determination of compensability of the claim before benefit payments are initiated. The burden of securing that information is upon the employer or insurance carrier, after reasonable notice of injury has been received.'
Consequently, we hold that when an insurer undertakes to investigate through non-medical means the validity of a compensation claim it normally acts as an insurer. However, before it can concluded that the Industrial Accident Commission (now the Workmen's Compensation Appeals Board) had exclusive jurisdiction of all controversies arising between the claimant and the insurer relating to the latter's performance of its investigative function, consideration must be given to the question as to whether the nature of each tort allegedly committed by Truck Insurance Exchange has any jurisdictional significance.
Considered together, the opinions in Fitzpatrick v. Fidelity Casualty Co., supra, 7 Cal.2d 230, 60 P.2d 276; Noe v. Travelers Ins. Co., supra, 172 Cal.App.2d 731, 342 P.2d 976, and State Comp. Ins. Fund v. Superior Court, supra, 237 Cal.App.2d 416, 46 Cal.Rptr. 891, indicate that an injured employee cannot maintain a common law cause of action against an insurance carrier for negligent acts committed while acting as an insurer. Consonant with the principle established in those cases, we hold that to the extent that plaintiff's complaint alleged [97 Cal.Rptr. 838] negligence on the part of Truck Insurance Exchange while engaged in conduct within the scope of its activities as an insurer, the Industrial Accident Commission (now the Workmen's Compensation Appeals Board) had exclusive jurisdiction of the subject matter of this action.
In the present case, however, the plaintiff has also set forth in her complaint causes of action for assault and for intentional infliction of emotional distress. Thus, the question is presented as to whether an allegation of the commission of an intentional tort, as distinguished from negligent conduct, in an investigation of a claim by use of non-medical means requires a different conclusion as to the respective jurisdiction of the Workmen's Compensation Appeals Board and of the superior court. For reasons which will be set forth hereinafter, we hold that the status of an insurer is not affected by the nature of a tort which it may commit upon a compensation claimant in the course of its investigation of the claim and that jurisdiction with respect thereto is solely in the Workmen's Compensation Appeals Board.
To uphold plaintiff's contention we would have to determine that Truck Insurance Exchange became a 'third person,' not because of the function it was performing but because it committed an intentional tort while engaged in an otherwise proper investigation of a claim. In Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8, which, as noted hereinabove, is the only case in which the concept of dual legal personality has heretofore been applied, the court clearly stated that its finding of jurisdiction was based on the special nature of the relationship existing between Dr. Shane and his employee. The court stated at page 793, 249 P.2d at page 15: 'It is true that the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic. But where, as here, it is perfectly apparent that the person involved--Dr. Shane--bore towards his employee two relationships--that of employer and that of a doctor--there should be no hesitancy in recognizing this fact as a fact. Such a conclusion, in this case, is in precise accord with the facts and is realistic and not legalistic.'
The relationship which existed between Truck Insurance and the plaintiff was that between compensation insurer and claimant. A transformation of that relationship into one in which the insurance carrier became something other than an insurer because of its particular conduct is purely fictional and contrived. As stated in Deauville v. Hall, supra, 188 Cal.App.2d 535, at page 546, 10 Cal.Rptr. 511, at page 518, courts are 'unwilling by legalistic machinations to make unwarranted inroads into the proper jurisdiction of the commission.'
The plaintiff further attempts to circumvent the immunity afforded to compensation insurers by reliance upon Ramey v. General Petroleum Corp., 173 Cal.App.2d 386, 343 P.2d 787. In that case the court reversed the judgment entered after the sustaining of demurrers without leave to amend. The court responded to defendant's contention that plaintiff was barred from an action at law because he had recovered a compensation award as follows (173 Cal.App.2d at pages 402-403, 343 P.2d at page 797): '[W]e think the workmen's compensation act should not be available as a defense in a fraud action instituted by an employee against his employer under the peculiar circumstances alleged herein, to wit: where the fraud consists of misrepresentations by the employer to the employee which induced the employee to fail to discover that his personal injuries were sustained by reason of the wrongful conduct of a third party against whom the employee had recourse, and where the fraud further consists of misrepresentations by the employer to the employee to the effect that he did not have to sue until he no longer needed medical care, and to the effect that he had only one claim which was for medical expenses which he would incur [97 Cal.Rptr. 839] in the future. [p] Surely, the Legislature never intended that an employer's fraud was a risk of employment. Further, we do not believe that an injury caused by the employer's fraud arises out of the employment nor is it proximately caused by the employment as those terms are used in the statute.'
Accepting the plaintiff's contention that she has adequately alleged fraudulent misrepresentation, it is readily apparent that the determination made by the court in Ramey is not applicable to the instant case. It need only be noted that in Ramey the court concluded that the harm which resulted from such fraud was not compensable under the workmen's compensation scheme.
We have previously pointed out that the jurisdictional determination made by the Industrial Accident Commission (now the Workmen's Compensation Appeals Board) that the injuries for which plaintiff seeks recovery in the instant case were compensable under the workmen's compensation provisions of the Labor Code is res judicata in all subsequent proceedings, including court actions, between the same parties or those privy to them. (Scott v. Industrial Acc. Com., supra, 46 Cal.2d 76, at page 83, 293 P.2d 18.) However, prior to seeking compensation before the Industrial Accident Commission with respect to the injuries incurred in 1964, plaintiff had the option of having the question of jurisdiction of her claim determined by either the superior court or the commission. In Azevedo v. Abel, 264 Cal.App.2d 451, at page 455, 70 Cal.Rptr. 710, at page 712, the law applicable to the determination of jurisdiction as between the superior court and the workmen's compensation agency was stated as follows: 'In Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 293 P.2d 18, the court was confronted with the practical problem arising when either one of two tribunals has an exclusive jurisdiction which cannot be discerned until such time as a final decision on substantive entitlement is reached. Scott holds that--as between the workmen's compensation agency and the trial court--the tribunal first assuming jurisdiction retains it to the exclusion of the tribunal invoked later (46 Cal.2d at p. 81, 293 P.2d 18); that the only point of concurrent jurisdiction is jurisdiction to determine jurisdiction (46 Cal.2d at p. 83, 293 P.2d 18); if the claim is not covered by workmen's compensation the industrial accident agency (now the Appeals Board) has no jurisdiction to give relief, and if there is coverage the superior court is without jurisdiction (46 Cal.2d at p. 83, 293 P.2d 18); that a final determination as to coverage by either tribunal will be res judicata in subsequent proceedings between the parties or their privies (46 Cal.2d at p. 83, 293 P.2d 18); that the tribunal first invoked should proceed to determine jurisdiction, while the second will be restrained if it attempts to do so (46 Cal.2d at p. 81, 293 P.2d 18).' (See Jones v. Brown, 13 Cal.App.3d 513, at pages 520-521, 89 Cal.Rptr. 651.)
The judgment (order of dismissal) dated February 5, 1970, and filed on February 27, 1970, is affirmed as to defendant Truck Insurance Exchange and is reversed as to defendants Farmers Insurance Group and Robert O. Wishman. The judgment (order of dismissal) dated February 6, 1970, and filed on February 27, 1970, is reversed as to defendant William R. Baker.
SCHWEITZER and ALLPORT, JJ., concur.
The determinations made by the Industrial Accident Commission (now the Workmen's Compensation Appeals Board) within its jurisdiction are res judicata in all subsequent proceedings, including court actions, between the same parties or those privy to them. (Scott v. Industrial Acc. Com., 46 Cal.2d 76, 83, 293 P.2d 18.) Consequently, the determination that the effect on the plaintiff of the events in the hearing of April 30, 1964, was compensable was not open to question in the superior court.