Uninsured employer (California) (California)

[liensgalore]

Is there anyone who could help me out with this: If an uninsured employer does not make a decent offer to settle a fairly large lien through UEF, can I file a claim in civil court?
Thanks!

[steve appell]

Hi Liensgalore:

Workers compensation still remains an exclusive remedy system.......even for the illegally uninsured. Therefore, I don't know why you thought you could change close to 100 years of law simply because you were not being offered enough money. Nevertheless, I do recommend the following road map as an answer to your post which is covered in LC 5600.

If you cannot settle with the UEF, you need to go to trial at the WCAB and get a decision ordering the ER to pay you. Once the SOL has run for an appeal, and the ER has still not paid the order, and you eventually locate assets, you may then petition the WCAB for an Order of Attachment against the ER and have it certified by the Clerk of the Superior Court which may then be served on the County Sherrif to be served on the ER.

The assets are then sold and/or auctioned off, and you get paid a percentage of the order based on your place in line among all the other parties in the same shoes as you attempting to collect money from an illegally uninsured ER who has no money.

Good Luck!

[vampireinthenight]

I thought 3715 allowed both remedies?

[steve appell]

Hi Vampire !

Although you are correct in that LC 3715 in part does allow both remidies, LC 3710-3732 in total specifically refers to, "FAILURE TO SECURE PAYMENT OF COMPENSATION."

The actual amount of "PAYMENT OF COMPENSATION" is determined only by the WCAB and subsequently enforced and/or "SECURED" by the Superior Court. I am unaware of any case or statute law (in total) in which the intent of the law allows a Superior Court Judge to determine the actual amount of compensation. Therefore, a Superior Court Judge only has the power to enforce collection of a predetermined amount ordered by the WCAB, and I welcome the review of any additional cites you wish to post after reviewing all of LC 3710-3732.

Good Luck !

[vampireinthenight]

Hi Steve. Thanks, that is an interesting post. I admit I do not have a lot of personal experience in this area. I'm a little confused about your analysis. How is that any different than an insured employer? If the Superior Court is securing the payment, is that the same as the ER securing it?

Section 3706 seems to say that an IW can bring a claim "at law" as if the entire Division IV did not even exist.

I reviewed the Hestehauge case again. (70 CCC 1294). The language at the top of page 1307 seems to describe an ability to elect between civil (ie negligence) and WC remedies (albeit under the old law). Halfway down page 1316, the court says that WC is generally the exclusive remedy, but the main exception is uninsured employers. It goes on to describe securing compensation to mean either purchasing a policy or a certificate of self-insurance.

What are your thoughts on Hestehauge?

Have a great weekend!

[steve appell]

Hi Again Vampire:
Hestehauge appears to hold that there is a dual remedy in comp and civil liability for residential workers whose employer is uninsured and whose employment meets the criteria of Labor Code Section 3715(b).

Although this is very case specific, it appears I have learned something new !!

[vampireinthenight]

Yeah, I agree, I'll have to read it again from start to finish (it's pretty long!). The parts about the dual remedies may be dicta, especially if the case narrowly limits its holding to residential employees. Interesting analysis at least.

Have a great week!

PS as I post this I see the "font colour" button. Is this a brittish site?

[davidd]

The site is based right here in the US, but the software is open source (with our tweaks) and I believe the coordination is British, which would account for the spelling.