by jpod on Fri Nov 09, 2018 10:54 am
Isn't the public policy at work on 4062.2(a) the same as the public policy that created 5500.5? That issue was that WCAB resources were being gobbled up by disputes between insurers and not disputes between the injured worker and the insurer. Isn't the contribution process the vehicle for dueling insurers to duke it out after the applicant's case has resolved as to the applicant?
It seems to me that due process is a weak argument on these type of public policy issues. Recall that the US Supreme Court in White vs. NY Railroad dispatched employer arguments that state WC laws violated their due process rights by making them strictly liable for work place injuries. The rationale at the root of that decision was the employer would not be paying for the cost of purchasing WC insurance because that cost is no different than wages and cost of materials which factor into the pricing of the product the consumer purchases. The public policy is to allocate those costs to the consumers who buy the products.
This concept is not limited to WC either, it has been expressly stated that this is the rationale behind the Respondeat Superior doctrine which was recently cited in JAKE NEWLAND, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES B277638 (Los Angeles County Super. Ct. No. BC514945 (sorry I don't have the actual cite):
"..Rationale for Respondeat Superior Under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s tortious conduct within the scope of employment. (Jorge, supra, 3 Cal.App.5th at p. 396.) The employer is liable not because it controls the employee’s actions or has any fault, “‘but because the employer’s enterprise creates inevitable risks as a part of doing business. [Citations.]’ [Citation.]” (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 94.) “‘“The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.”’ (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959– 960 (Hinman), quoting Prosser, Law of Torts (3d ed. 1964) p. 471; accord, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 304 [policy goals of the doctrine are ‘preventing future injuries, assuring compensation to victims, and spreading the losses caused by 14 an enterprise equitably’]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [‘central justification for respondeat superior’ is that ‘losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business’].)” (Jorge, supra, 3 Cal.App.5th at pp. 396–397.)..."