GOINS v. BOARD OF PENSION COMMISSIONERS OF CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 5, California.

Verna L. GOINS, Plaintiff and Appellant, v. The BOARD OF PENSION COMMISSIONERS OF the CITY OF LOS ANGELES, the Fire and Police Pension System of the City of Los Angeles, the City of Los Angeles, Defendants and Respondents.

Civ. 53993.

Decided: September 17, 1979

Kirsch, Arak & Bulmash, and Richard J. Greene, Beverly Hills, for plaintiff and appellant. Burt Pines, City Atty., Los Angeles, Siegfried O. Hillmer, Asst. City Atty., and Mary Jo Curwen, Deputy City Atty., for defendants and respondents.

OPINION ON REHEARING

Appellant Verna Goins, the widow of a former Los Angeles police officer, brought this action to compel payment of a widow's pension under section 1831/2 of the Charter of the City of Los Angeles.1 The parties agreed there were no triable issues of fact and each party submitted a motion for summary judgment. (Code Civ.Proc., s 437c; Pacific Auto. Ins. Co. v. Wolff, 72 Cal.App.3d 537, 540, 140 Cal.Rptr. 164.) The trial court granted summary judgment for respondents Board of Pension Commissioners of the City of Los Angeles, the Fire and Police Pension System of the City of Los Angeles, and the City of Los Angeles. The sole issue is a question of interpretation whether appellant is eligible for a widow's pension under section 1831/2.

On August 25, 1965, Donald Goins was retired from the Los Angeles Police Department on account of service connected disability, under section 182 which provides a pension to members of the fire or police departments who become disabled by injuries or sickness caused by the discharge of their duties. At the time of his disability retirement, he had served the police department for 19 years and 7 months, and thus was not eligible for retirement on account of years of service, which requires 20 years' service. (s 181.) Appellant did not marry Donald Goins until July 19, 1972, nearly seven years after his disability retirement. She remained married to him until his death on February 14, 1975, which death was from nonservice connected causes.

Section 1831/2 provides that with certain specific exceptions, whenever any member of the police department who shall have served 5 years or more dies from causes other than those arising out of the performance of his duties, then an annual pension shall be paid to his widow equaling 40 percent of the highest salary attached to his rank at the date of death. To be eligible, the widow must have been married to the member at least one year prior to his Death. A literal reading of section 1831/2 shows that appellant satisfies all of its conditions and is eligible for a pension. Donald Goins was (1) a member of the police department; (2) who had served the department for five years or more; and (3) who died from causes other than those arising out of the performance of his duties. Appellant was married to him for at least one year prior to his death.

Respondents argue that the charter section does not mean what it says, and that the term “any member” in section 1831/2 should be construed as limited to persons in active service. They further argue that the applicable section is section 183, which provides a widow's benefit whenever a member dies “after retirement” or in certain other circumstances. The widow's pension under section 183 is 50 percent of the average salary of the ranks held by the member during the 3 years preceding his retirement from active duty. However, to be eligible under section 183, the widow of a pensioner must have been married to him at least one year prior to his Retirement, a condition which appellant cannot satisfy. Respondents argue that to hold appellant eligible under section 1831/2 would bring the two sections into irreconcilable conflict and that therefore appellant's interpretation of section 1831/2 cannot be sustained. We conclude to the contrary, that appellant is eligible for a pension under section 1831/2 and that this interpretation does not lead to irreconcilable conflict with section 183.

DISCUSSION

Section 1831/2 contains a number of specific provisions in addition to its general rule. To understand the parties' contentions it is necessary to quote section 1831/2 in some detail, but it should be reiterated that Donald Goins retired on account of service connected disability under section 182; he did not retire on account of years of service, nor was he eligible to retire on account of years of service; he did not retire under section 1821/4, which grants a disability pension for Non service connected disability. With these facts in mind, it will be seen that Donald Goins came within the general rule laid down in section 1831/2, and not within any of its specific exclusions or specific provisions as to nonservice connected disability pensions under section 1821/4.

Section 1831/2 provides in pertinent part as follows: “Whenever any member of the Fire or Police Department (other than a member retired on account of years of service or a member eligible to retirement on account of years of service, but including a member retired on account of disability pursuant to the provisions of Section 1821/4 of this charter) who shall have served in such department for five years . . . shall die from causes other than those arising out of or from the performance of his duties, then an annual pension shall be paid . . . to his widow . . . in an amount equal to forty per cent (40%) of the highest salary . . . attached to the rank of policeman or fireman at the date of such member's death. . . . Provided, further, however, that no widow shall be entitled to a pension pursuant to the provisions of this section unless she shall have been married to such deceased member for at least one year prior to the date of his death. (P) And provided further, that no widow of a member who shall die while on disability retirement pursuant to the provisions of Section 1821/4 of this charter shall be entitled to a pension pursuant to the provisions of this section unless she shall have been married to such deceased member at least one year prior to the date of his retirement.”

Donald Goins came within the general rule of section 1831/2. He was a member of the police department who had served for five years and who died from causes other than those arising out of or from the performance of his duties. Appellant was married to him at least one year prior to the date of his death.

None of the Specific provisions in section 1831/2 as distinguished from its general rule, covers Donald Goins' situation. Section 1831/2 specifically excludes members retired on account of years of service or eligible to retire on account of years of service, but he was neither of these. Section 1831/2 specifically requires the widow of a member who retired for nonservice connected disability under section 1821/4 to have been married to the member at least one year prior to the date of his retirement, but Donald Goins was not such a member.

The provisions of a pension statute are to be liberally construed in favor of an applicant so as to effectuate the purpose of providing benefits to an employee and his family. (Cavitt v. City of Los Angeles, 251 Cal.App.2d 623, 626, 59 Cal.Rptr. 690.) When a statute contains an exception to a general rule laid down therein, that exception is strictly construed. (Marrujo v. Hunt, 71 Cal.App.3d 972, 977, 138 Cal.Rptr. 220.) Other exceptions are necessarily excluded. (City of Coronado v. California Coastal Zone Conservation Com., 69 Cal.App.3d 570, 580, 138 Cal.Rptr. 241.) Here, section 1831/2 specifically excludes “a member retired on account of years of service or a member eligible to retirement on account of years of service.” It does not specifically exclude a member who retired on account of service connected disability. Had the framers intended also to exclude members who retired on account of service connected disability, it would have been simple so to provide. The court cannot insert qualifying provisions or rewrite the statute. (Vallerga v. Dept. Alcoholic Bev. Control, 53 Cal.2d 313, 318, 1 Cal.Rptr. 494, 347 P.2d 909.) Similarly, had the framers intended a service connected disability pension under section 182 to be governed by the same rules as a nonservice connected disability pension under section 1821/4, it would have been simple so to provide. The mention of the latter implies the exclusion of the former.

There is no merit to respondents' argument that the word “member” in section 1831/2 means a person on active duty. There is no language in section 1831/2 limiting it to active service. We find no definition of the word “ member” in article 17 of the charter. However, the syntax of section 1831/2 and section 183 clearly requires rejection of respondents' contention. The specific exception in section 1831/2 for a “member retired” on account of years of service would not have been necessary if the word “member” by itself excluded retirees. The same context is found in section 183 which refers in part to “(w)henever any Member of the Fire or Police Department shall die . . . after Retirement . . . , then an annual pension shall be paid . . . to his widow . . . .” (Emphasis added.) This shows that “member” includes retirees.

Nor are we persuaded by respondents' argument that a comparison of sections 183 and 1831/2 requires that section 1831/2 be limited to active members in order to avoid irreconcilable conflict with section 183.

Section 183 provides in pertinent part: “Whenever any member of the Fire or Police Department shall die (1) as a result of any injury received during the performance of his duty, or (2) from sickness caused by the discharge of such duty, or (3) after retirement, or (4) while eligible to retirement from such department on account of years of service, then an annual pension shall be paid in equal monthly installments to his widow . . . in an amount equal to one-half (1/2) of the average monthly rate of salary assigned to the ranks or positions held by such member during the three years immediately preceding the time of his death or the date of his retirement from active duty in such department. . . . Provided, further, however, that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such deceased pensioner at least one year prior to the date of his retirement; and provided, further, that no widow of a member of the Fire or Police Department eligible for retirement from such department, who dies from causes other than those arising out of or from the performance of his duties, shall be entitled to a pension unless she shall have been married to such deceased member for at least one year prior to the date of his death . . . .”

A liberal construction of the word “retirement,” in the clause we have labeled (3), would, as respondents contend, permit that word to refer to disability retirement as well as retirement on account of years of service. As respondents point out, to be eligible for a 50 percent pension under section 183, a widow must have been married to the retiree at least one year prior to his retirement. Under the Express provisions of section 1831/2, which involves a 40 percent pension, the same is required of the widow of a member who retired for Non service connected disability under section 1821/4. But section 1831/2 makes no specific provision with regard to the widow of a member who retires for Service connected disability. The General provisions of section 1831/2 entitle the widow to a 40 percent pension subject only to the requirement that she have been married to the member one year prior to his Death.

Contrary to respondents, we do not find irreconcilable conflict in this situation. It is the duty of the court to consider the statutory scheme as a whole, and to reconcile and give effect to each of its parts if possible. (REA Enterprises v. California Coastal Zone Conservation Com., 52 Cal.App.3d 596, 610, 125 Cal.Rptr. 201; Code Civ.Proc., s 1858.) We must attempt to give some meaning to the fact that the parenthetical clause in section 1831/2 Specifically excludes members retired on account of years of service and members eligible to retirement on account of years of service, Specifically includes member retired on account of Non service connected disability pursuant to section 1821/4, and Makes no specific reference to a member retired on account of service connected disability, such as Donald Goins. The most satisfactory explanation is that the framers intended the case of death from nonservice causes subsequent to service connected disability to fall within the general rule of section 1831/2, and to avoid the pre-retirement marriage requirement contained in section 183 and the second paragraph of section 1831/2. We can conceive of a rational purpose in doing precisely that.

The framers of a pension system might reasonably conclude that an officer who has been disabled in the line of duty should receive greater support than an officer disabled for nonservice connected reasons. (Compare s 182 With 1821/4.) So, also should the widow of an officer killed in the line of duty as compared with the widow of an officer who dies from other causes. When an officer is killed in the line of duty, his widow gets a 50 percent pension without being required to have been married to him for a year. (s 183.) When he dies while in the active service (after 5 years) from nonservice connected causes, the widow gets a 40 percent pension and is required to have been married to him 1 year prior to his death. (s 1831/2.) The framers might also reasonably favor the widow whose husband dies after service connected disability retirement over the widow whose husband dies after nonservice connected disability retirement, and the widow of a retiree who married him prior to retirement over the widow who married the retiree after retirement.

Putting all these factors together, it would be reasonable to apply section 1831/2 to appellant's situation. Contrary to respondents' arguments, the fact that appellant cannot qualify for a section 183 pension does not necessarily mean there can be no consideration of a section 1831/2 pension In the alternative. Such consideration would rationally distinguish different cases based on some of the policies just discussed. Appellant's interpretation of section 1831/2 would place her appropriately in relation to other cases, as follows:

1. The widow of a service connected disability retiree who was married to him a year prior to retirement receives the more generous pension, 50 percent under section 183, clause (3).

2. The widow of a nonservice connected disability retiree receives a 40 percent pension under section 1831/2, but only if she was married to him a year prior to retirement.

Appellant's case falls in between in terms of policy. On the one hand, her husband's disability was service connected, a favorable factor; on the other hand, she did not marry him until after retirement, a less favorable factor. It would be appropriate therefore for her to receive a smaller pension than in the first example but an equal pension to the second example without having to fulfill the pre-retirement marriage requirement.

Since appellant's eligibility under section 1831/2 is not necessarily in conflict with section 183, her apparent eligibility under the literal language of section 1831/2 should be upheld. Pension statutes must be liberally construed in favor of the applicant and we may not insert additional exceptions or qualifications into the statute.

The judgment is reversed with directions to the trial court to enter judgment for appellant.

FOOTNOTES

1.  All section references hereinafter are to the Los Angeles City Charter unless otherwise indicated.

ASHBY, Associate Justice.

STEPHENS, Acting P. J., and HASTINGS, J., concur.

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