COLONIAL INS CO v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Second District, Division 2, California.

COLONIAL INS. CO. v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 15006.

Decided: December 04, 1945

Herlihy & Herlihy, of Los Angeles, for petitioner. Everett A. Corten and R. C. McKellips, both of San Francisco, for respondents.

Petitioner seeks to annul an order of the Industrial Accident Commission which is predicated upon a finding that the applicant's occupational injury, disability from silicosis, had appeared during the period of petitioner's coverage of applicant's employer.

The essential facts are these:

The applicant started to work for the defendant Emsco Refractories Company on September 1, 1928. He worked continuously for the employer until August 29, 1942. Short layoffs had occurred because of economic conditions during the depression. From August 29, 1942, until September 16, 1942, he was off work by reason of a cold. Thereafter he continued work for the same employer until October 29, 1943, when he became totally disabled from silicosis.

During the sixteen years of applicant's employment with Emsco Refractories Company, the employer was uninsured some of the time and had various insurance carriers at other times. The facts as to insurance coverage during his employment are as follows:

September 1, 1928, to October 26, 1930, Associated Indemnity Corporation, a corporation;

October 26, 1930, to October 26, 1931, Travelers Insurance Company;

October 26, 1931, to October 26, 1933, Ocean Accident & Guarantee Corporation, Ltd.;

October 26, 1933, to December 22, 1933, Travelers Insurance Company;

December 22, 1943, to December 28, 1934, Limited Mutual Compensation Insurance Company;

December 29, 1934, to November 15, 1937, uninsured as to industrial diseases;

November 15, 1937, to April 17, 1941, Guarantee Insurance Company;

April 17, 1941, to October 29, 1943, petitioner, Colonial Insurance Company.

It is conceded that the silicosis which finally caused applicant's disability on October 29, 1943, resulted from continued exposure during the preceding sixteen years when he worked as a molder of silica bricks.

This is the sole question presented for our determination:

Should the award be apportioned among all of the insurance carriers who had insured the Emsco Refractories Company during the years of applicant's employment by such company?

This question must be answered in the negative. The law is established in California that where the Industrial Accident Commission finds that the applicant has for purposes of compensation contracted an occupational disease while in the employ of the employer for whom he has been working immediately preceding his illness and there is no evidence that the disease existed prior to the date of disability, the commission is without jurisdiction to apportion the award between the immediate employer and prior employers on the theory that applicant might have contracted the disease to some extent during the prior employment. Moore Shipbuilding Co. v. Industrial Accident Comm., 70 Cal.App. 495, 233 P. 392; Rubattino v. Industrial Accident Comm., 65 Cal.App.2d 288, 300, 150 P.2d 538.

If the applicant had been employed by several employers during the sixteen years prior to his disability the award could not have been apportioned among such employers since his disability did not occur until October 29, 1943. We cannot see any logical reason for apportioning the award among prior insurance carriers because there was only one employer instead of several employers. The insurance carrier's liability and employer's liability arise at the same time, which in this case was the date of the industrial disability, October 29, 1943.

For the foregoing reasons the order is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.