FRANCZAK v. LIBERTY MUTUAL INSURANCE COMPANY

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Court of Appeal, Second District, Division 4, California.

Josef FRANCZAK, in behalf of himself and all other persons similarly situated, Plaintiffs and Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Defendant and Respondent.

Civ. 45931.

Decided: June 21, 1976

David Daar and Leon Perlsweig, Los Angeles, for plaintiffs and appellants. Gibson, Dunn & Crutcher and Wesley G. Howell, Jr., Richard P. Levy and Aulana L. Peters, Los Angeles, for defendant and respondent. T. Groeziner, James J. Vonk, San Francisco, A. Hershenson, Los Angeles, S. E. Bloom, Los Angeles and G. S. Bjornsen, San Francisco, for State Compensation Insurance Fund, as amicus curiae in support of respondent.

Plaintiffs appeal from an order of the superior court dismissing, for lack of jurisdiction, a class action brought to secure the payment of interest on awards rendered by the Workers' Compensation Appeals Board. For the reasons set forth below, we affirm the order.

The problem underlying the present action (and other similar actions brought against other insurance carriers) is as follows:

Under section 5800 of the Labor Code, awards of the Board bear interest from the day they are filed. But the practicalities of computing the dollar amount of each award, processing that computation through the internal operations of the carrier, and delivery by mail of the resulting check to the awardee, inevitably involves a delay of several days. As a result, the check, when delivered, is less than the amount due on the date of delivery by the amount of interest for the intervening period. As a matter of practice, that unpaid interest is not recovered by the awardee. Plaintiffs allege that, as a result, the carriers reap a windfall amounting to many thousands of dollars.

Section 5806 of the Labor Code provides a method by which an awardee may secure collection of an award if it is not voluntarily paid. That section provides:

‘Any party affected thereby may file a certified copy of the findings and order, decision, or award of the appeals board with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity therewith.’ However, that procedure, it is alleged, is impractical as a device to secure the payment of interest in cases such as this.1 For example, the award in favor of the nominal plaintiff in this action was $1,486; the unpaid interest was $1.44.2 The cost to him of securing a certified copy of the award, filing it in superior court and having execution issue, be levied and enforced would far exceed the benefit to be secured.

Against that background, the present action was instituted. As explained at oral argument, the theory of the complaint is that the superior court should, by its order, either compel the Board to list for plaintiffs all awards against this carrier, or appoint a master for that purpose, compute unpaid interest, and enter a single judgment for the total amount. From that judgment, expenses and attorney fees would be deducted and the balance, if any, would be paid, pro rata, to the members of the class. It is plaintiffs' assumption that this method of proving the awards in the superior court will be less costly than the procedure prescribed in the code, and that a residue for the members of the class will thereby be created.

We reject plaintiffs' contentions that they are entitled to a judgment on the theory of res judicata, collateral estoppel, law of the case or stare decisis.3 Chiefly, they rely on the decision of Division Five of this court in Addington v. Industrial Indem. Co. (1972) 24 Cal.App.3d 802, 101 Cal.Rptr. 277. But that case is not controlling here. Obviously, since Addington is not this case, and involved different parties, no res judicata, collateral estoppel or law of the case is involved. If any principle is here involved it is stare decisis. But Addington did not discuss or involve the problem now before us in the case at bench. The plaintiffs in Addington had sought, by a proceeding before the Board, to institute there a class action proceeding seeking a single award for interest against the carrier therein involved, on a theory similar to that urged on us here. That attempt was denied by the Board in an opinion cited and quoted in Addington. Thereafter, in a superior court action similar to this one, the trial court granted a summary judgment in favor of the carrier, on the ground that the Board's denial of relief was res judicata. Addington reversed that order, but expressly on the ground that a decision by the Board that the Board would not grant relief did not determine that a superior court might not grant such relief. Addington did not decide that a superior court Did have jurisdiction; it decided only that determination of that issue remained with the superior court unhampered by anything the Board had said. The present case brings that jurisdictional issue squarely before us.

It is the general rule that the Board has exclusive jurisdiction to enforce its awards.4 Plaintiffs argue that section 5806 is an exception to that rule and that they are here seeking only to utilize that jurisdiction by an alternative method. The argument fails for the reason that, in entering a WCAB award as a judgment of the superior court, the clerk acts as an arm of the Board and not of the court. The procedure makes available lien, levy and execution, but those matters, as well as the underlying award are deemed to remain under the auspices of the WCAB. (Lab.Code, ss 5803, 5808, 5809.) As explained in Vickich v. Superior Court (1930) 105 Cal.App. 587, 592, 288 P. 127, 128:

‘The provisions of the Compensation Act (Lab.Code, s 5806) which authorize the entry of judgment upon an award and the issuance of execution thereon in the superior court are merely a method adopted for the enforcement of such awards, in lieu of machinery of enforcement which might have been provided for and given to the commission itself, to exercise through executive officers appointed for that purpose. Subject only to review by the Supreme Court or a District Court of Appeal, The judicial authority in relation to such awards appears to have been retained entirely within the Industrial Accident Commission. . . . The execution on a judgment entered upon an award of the Industrial Accident Commission, although in the form of an execution upon a judgment of the superior court, is in reality an execution upon the award of the commission. The clerk in issuing the execution, and the sheriff in making his levy and sale under the writ, are for the purposes of the proceeding instrumentalities of the commission in the enforcement of its award . . .’ (Emphasis added.)

Similarly, in Greitz v. Sivachenko (1957) 152 Cal.App.2d 849, 850, 313 P.2d 922, 923, the court stated:

‘But the proceeding for entry of judgment upon an award of the Industrial Accident Commission is plenary. Upon filing of a certified copy of the commission's award and order, the clerk must immediately enter judgment. (Lab.Code, s 5806.) The clark in entering the judgment, And the sheriff in levying execution under it, Act as instrumentalities of the commission, and not of the superior court . . ..’ (Emphasis added.)

It follows that the superior court, as such, has no jurisdiction to enforce the unpaid interest, except to perform its ministerial duties as provided by statute. The clerk has no authority to enter an award as a judgment unless, and until, he is presented with a certified copy of that award. If plaintiffs have any remedy for the losses incurred by them, they must find it before the Board or in the Legislature.

The judgment is affirmed.

FOOTNOTES

1.  Where payment is delayed beyond the practical necessities of computation, processing and delivery, a different situation exists and the problem herein involved does not arise. (See Myers v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 120, 97 Cal.Rptr. 400.)

2.  Even adding the 10% Penalty provided for by Labor Code section 5814, the amount for the nominal plaintiff would reach only $1.58.

3.  Plaintiffs also seem to rely on various denials of prerogative writs by this court and the Supreme Court in other cases involving the same problem. That reliance is misplaced. (5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, s 146, pp. 3917—3918.)

4.  California Constitution, article XX, section 21; Labor Code, section 5300; Loustalot v. Superior Court (1947) 30 Cal.2d 905, 910—911, 186 P.2d 673; Workmen's Comp. Appeals Bd. v. Small Claims Court (1973) 35 Cal.App.3d 643, 646, 111 Cal.Rptr. 6.

KINGSLEY, Associate Justice.

FILES, P.J., and JEFFERSON (BERNARD), J., concur.