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John and Wanda K. HENDY, Plaintiffs and Appellants, v. Gary LOSSE, M.D., et al., Defendants and Respondents.
John Hendy injured his right knee while playing football for the San Diego Chargers Football Company (Chargers or Club). Pursuant to his contract with the Chargers, he sought medical attention from the club physician, Gary Losse, M.D., who recommended Hendy continue to play. Hendy followed this advice, and, as a consequence, the injury to his knee was aggravated. Hendy and his wife, Wanda, sued both Losse and the Chargers. The Chargers removed the lawsuit to federal court, where John Hendy's causes of action against the Chargers were dismissed on the basis of federal preemption and the remainder of the suit was remanded to state court. Losse demurred in superior court on the basis that the state's Worker's Compensation Act (Labor Code,1 §§ 3200 et seq.) barred the Hendys' tort claims against him. The Chargers also demurred to Wanda's loss of consortium claim. The trial court sustained the demurrers without leave to amend, and judgment was entered in favor of Losse and the Chargers. The Hendys appeal.
FACTS
On the same day he injured his knee, August 11, 1986, Hendy sought and obtained medical advice and treatment from club physician Losse. Under the terms of its contract with Hendy, the Chargers made Losse's services available to Hendy. The contract required Hendy to consult the club physician as a condition of receiving medical care at the club's expense and continuing to receive his salary.
On May 18, 1987, Losse advised Hendy to continue playing football. Hendy again sustained injuries to his right knee on May 28, 1987, while playing in a regular and scheduled training session. The same day he Hendy also sought and obtained medical advice and treatment from Losse for the injuries to his right knee. On June 2, 1987, Losse advised Hendy to continue to play football.
On September 1, 1987, the Chargers notified Hendy it was terminating his employment as a player. On September 8, 1987, Hendy consulted a physician who was not employed by the club and was told the cause of his injuries was Losse's failure to properly diagnose and treat his condition.
On September 2, 1988, Hendy and Wanda filed a lawsuit against Losse and the Chargers. The complaint stated five causes of action: (1) negligent hiring and retention against the Chargers for retaining a club physician without the necessary knowledge and skill to properly care for Hendy's condition; (2) intentional misrepresentation regarding Hendy's condition against the Chargers and Losse; (3) negligent misrepresentation regarding Hendy's condition against the Chargers and Losse; (4) medical malpractice against Losse; and (5) loss of consortium on behalf of Wanda against the Chargers and Losse.
The complaint alleged Losse was negligent in diagnosing and treating Hendy's condition or in the alternative correctly knew Hendy's condition but did not disclose it to Hendy and instead made false misrepresentations about it to him.
On November 18, 1988, the Chargers filed a petition to remove the Hendys' lawsuit from Superior Court to the United States District Court pursuant to 28 U.S.C. section 1441 because all causes of action were subject to the terms of the National Football League Players Association Collective Bargaining Agreement and therefore preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. section 185. Losse joined in the petition for removal.
On March 23, 1989, United States District Court Judge J. Lawrence Irving granted the Chargers' motion to dismiss the first, second and third causes of action on the ground that the Hendys had failed to exhaust their contractual remedy through the grievance process provided for in Hendy's contract with the Chargers. Judge Irving also granted the Hendys' motion to remand their fourth and fifth causes of action to state court.
After the remand to state court, both Losse and the Chargers filed the demurrers which the trial court sustained without leave to amend on June 1, 1989. A judgment of dismissal was entered on July 3, 1989.
DISCUSSION
The rules for review of a judgment following sustaining of a demurrer are well settled. The court accepts all facts alleged in the complaint as true for purposes of review. (McHugh v. Howard (1958) 165 Cal.App.2d 169, 174, 331 P.2d 674.) The test is whether those facts are sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)
At the onset, we note that after the remand to state court, the only cause of action involving the Chargers before the trial court was Wanda's claim for loss of consortium. (See discussion in part III, B of this opinion, infra.) Thus, we are primarily concerned here with whether Hendy can state a viable cause of action against Losse 2 notwithstanding the exclusive remedy provisions of the Act.
Subject to certain narrowly defined exceptions, the Act provides the exclusive remedy for injuries arising within the course of employment. (Johns–Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 473, 165 Cal.Rptr. 858, 612 P.2d 948.) When the conditions of compensation exist, an injured worker's exclusive remedy is the compensation available under the Act. (§§ 3600, 3601.) Those conditions exist where the injury arises out of and in the course of employment and is proximately caused by the employment. (§ 3600.) Section 3601 extends the exclusive remedy protection of the Act to co-employees who cause injuries while acting within the scope of their employment so long as there is no finding of willful or reckless conduct.
Here, in resolving whether the demurrer as to Losse was properly sustained, we must determine if the Act bars the Hendys' claims against Losse, a co-employee.3 In other words, is there a valid exception to the exclusivity provisions of the Act that will allow a viable cause of action to be stated? The trial court considered two theories—dual capacity and intentional concealment of injury—and rejected both.4 We shall review each of these theories separately; if either one is applicable, the demurrer as to Losse was improperly granted.
I
As we indicated above, ordinarily workers' compensation is an employee's exclusive remedy against an employer or co-employee for injuries arising out of and in the course of employment. One exception to exclusivity that California courts have developed is the dual capacity doctrine. Under the dual capacity theory, when an employer bears two separate relationships to his employee, each giving rise to separate legal obligations, the defendant employer is subject to liability for damages arising from the relationship distinct from that of employer and employee. (D'Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 666–667, 166 Cal.Rptr. 177, 613 P.2d 238.)5 The decisive test of this dual capacity doctrine is whether the nonemployer aspect of the employer's activity generated a different set of obligations by the employer toward the employee. (Id. at p. 667, 166 Cal.Rptr. 177, 613 P.2d 238.)
Here, the issue is does Losse's status as club physician operate as a total bar to a malpractice action by his co-employee Hendy or does his role as club physician give rise to a second set of obligations above and beyond his status of co-employee?
California has long recognized that doctors in the employ of companies may operate in the dual capacity of co-employee and physician and have held they are not shielded from malpractice actions by reason of their co-employee status. (Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8; D'Angona v. County of Los Angeles, supra, 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238; Hoffman v. Rogers (1972) 22 Cal.App.3d 655, 99 Cal.Rptr. 455.) 6
The California Supreme Court first enunciated the dual capacity doctrine in Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8, which involved malpractice by both the employer and a co-employee in addition to the industrial injury. In Duprey, a nurse, employed by a partnership composed of chiropractors, was injured in the course of her employment. She was treated by Dr. Shane, a partner, and by Dr. Harrison, an employee of the partnership. The Supreme Court held that even though the nurse had recovered workers' compensation benefits for her initial on-the-job injury, she could also pursue an action at law for damages against the partnership, the partners and both chiropractors who had treated her for aggravation of her injuries by negligent treatment.
The Supreme Court said that Dr. Shane had two relationships toward Duprey—an employer and a chiropractor. As an employer, the court reasoned, Dr. Shane was under a duty to provide compensation for her injuries but was not under an obligation to treat her personally and that if he had sent Duprey to a doctor retained by the workers' compensation insurer, that doctor would have been liable for malpractice. The court said:
“․ ‘There seems to be no logical reason why the employer-doctor, when he undertakes to treat the industrial injury, should not be responsible in a civil action for his negligent acts in treating that injury. Once it is established that an action before the commission for the industrial injury is no bar to an action against the insurance doctor for malpractice, it would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer doctor is a “person other than the employer” within the meaning of section 3852 of the Labor Code․ In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but ․ as an attending doctor, and his relationship to ․ [plaintiff] was that of doctor and patient.’ ” (Duprey v. Shane, supra, 39 Cal.2d at p. 793, 249 P.2d 8.)
Dr. Harrison was held to be liable because he occupied the same position as a physician retained by the insurer to treat the initial injury. (Id. at pp. 794–795, 249 P.2d 8.)
The Duprey court also noted:
“ ‘ “That independent professions by the fact of business contact with the employer should be absolved of responsibility for mistake, avoidable or unjustified neglect resulting in secondary affliction, seems obnoxious to the purpose and spirit of such a statute. To so hold might induce industry to encourage quackery, and place a premium upon negligence, inefficiency and wanton disregard of the professional obligations of medical departments of industry, toward the artisan.” ’ ” (Id. at p. 791, 249 P.2d 8.)
Relying on Duprey, supra, 39 Cal.2d 781, 249 P.2d 8, the court in Hoffman v. Rogers, supra, 22 Cal.App.3d 655, 99 Cal.Rptr. 455 held a salaried company doctor who negligently treated an employee for a work-related injury was amenable to a lawsuit by the employee. The Hoffman court said the enactment of a provision to immunize co-employees did not “undermine the dual personality theory.” (Id. at p. 662, 99 Cal.Rptr. 455.)7
In D'Angona v. County of Los Angeles, supra, 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238, the Supreme Court extended Duprey, supra, 39 Cal.2d 781, 249 P.2d 8, by holding an employee of a hospital who was negligently treated at the hospital for a disease she contracted on the job could sue the operator of the hospital. The D'Angona court observed: “In treating plaintiff's disease [the defendant] owed her a duty separate and distinct from its duty as her employer, and this was the duty to provide medical care free of negligence—the same duty that it owes to any member of the public who becomes a patient at its hospital. The fact that [the defendant] allegedly breached this obligation by employing negligent doctors rather than by some other purportedly negligent act did not absolve it of its responsibility to assure that the medical care which it directly undertook to provide was performed without negligence.” (Id., 27 Cal.3d at p. 669, 166 Cal.Rptr. 177, 613 P.2d 238.)
Under the reasoning of Duprey, supra, 39 Cal.2d 781, 249 P.2d 8, and its progeny, it is reasonable to hold Losse liable for malpractice notwithstanding his co-employee status. Losse was not only an employee of the Chargers, but also the treating physician to Hendy and, as such, charged with the obligations that arise in a doctor-patient relationship. Hendy's need for protection from medical malpractice is neither more nor less than that of others who are not employees of the Chargers. In treating Hendy, Losse's relationship to Hendy was that of a doctor-patient with all of the concomitant traditional obligations.
Further, it cannot be denied that if Hendy's compensable injury had been aggravated by an outside doctor, Hendy would have a cause of action for malpractice. (Duprey v. Shane, supra, 39 Cal.2d 781, 790, 249 P.2d 8.)
However, the continued vitality of the dual capacity doctrine has been questioned and we must consider whether it is still viable for this case.
In addition to applying the dual capacity doctrine to cases in which the employer steps out of his role as employer by providing medical care to the employer, California courts have applied the doctrine where the employee was injured at work by the use of a product which the employer manufactured for public distribution (Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 282, 179 Cal.Rptr. 30, 637 P.2d 266; Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 157, 194 Cal.Rptr. 51; Douglas v. E. & J. Gallo Winery, supra, 69 Cal.App.3d 103, 113, 137 Cal.Rptr. 797). In 1982 the Legislature severely limited the scope of the doctrine. (See discussion of the 1982 amendments to the Act, infra.)
On the basis of recent decisions by our Supreme Court, we conclude the dual capacity doctrine continues to be a viable theory even though it was partly repudiated by the Legislature in 1982. In Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d743,8 the Supreme Court analyzed various dual capacity decisions (Bell v. Industrial Vangas, Inc., supra, 30 Cal.3d 268, 179 Cal.Rptr. 30, 637 P.2d 266; D'Angona v. County of Los Angeles, supra, 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238; Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 102 Cal.Rptr. 815, 498 P.2d 1063; Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8) and affirmed the dual capacity rationale as an exception to exclusivity provided the conduct giving rise to the cause of action is an act not ordinarily part of the employment or not normally occurring within the course and scope of employment. (Cole, supra, 43 Cal.3d at pp. 161–162, 233 Cal.Rptr. 308, 729 P.2d 743.) Cole highlighted and emphasized factors appearing in earlier precedent: lack of relationship to normal employment; and lack of remedy in the workers' compensation system for the injury. According to Cole, the presence of these factors justifies compensation outside the system; their absence argues for exclusivity.9
Thus, no authority has been brought to our attention that disputes the continued vitality of Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8, and we conclude that as an intermediate appellate court we are compelled to follow this Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) 10
Losse contends the 1982 amendments to the Act prevent the Hendys from using the dual capacity doctrine to escape the exclusivity provisions of the Act. He relies principally on section 3602, subdivision (a), which provides:
“(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer, and the fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.”
Because Losse was not Hendy's employer, his contention must fail. The fundamental rule of statutory construction is that a court must ascertain the intent of the Legislature in order to effectuate the purpose of the law. In determining that intent, the court must begin with the statutory language. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658, 147 Cal.Rptr. 359, 580 P.2d 1155.) Further, “ ‘every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.’ [Citation.]” (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)
Chapter 922 of the Statutes of 1982 reworded sections 3600, 3601 and 3602. Before the 1982 amendments, section 3600, subdivision (a), provided that liability for compensation under the Act was “in lieu of any other liability whatsoever to any person except as provided in section 3706,” 11 where the described conditions of compensation exist.12 Former section 3601, subdivision (a), provided that, where these conditions occurred, the right to compensation benefits under the Act was the “exclusive remedy for injury or death of an employee,” and barred lawsuits against another employee of the same employer, as well as lawsuits against the employer, unless one of several specific exceptions was satisfied.13 Former section 3602 provided that, where the conditions of compensation did not occur, the employer's liability was the same as though the Act did not exist.14
The 1982 amendments modified section 3600 15 to provide that the remedy afforded by the Act is “in lieu of any other liability whatsoever to any person except as others specifically provided in Sections 3602, 3706 and 4558․” 16 The 1982 amendments also split former section 3601 into two separate provisions. New section 3601, subdivision (a),17 now applies only to lawsuits against fellow employees, and states the bar against such actions in substantially the same language as the former version of the statute. We conclude that since new section 360218 applies only to lawsuitsagainst employers, its limitation on the use of dual capacity has application only to lawsuits against employers.19
Our conclusion is bolstered when we consider basic rules of statutory construction. “ ‘[W]here a statute enumerates things upon which it is to operate it is to be construed as excluding from its effect all those not expressly mentioned.’ ” (Capistrano Union High School Dist. v. Capistrano Beach Acreage Co. (1961) 188 Cal.App.2d 612, 617, 10 Cal.Rptr. 750.) We must also presume the Legislature is familiar with its own previous enactments when legislating on a particular subject, with judicial decisions construing its previous acts, and with common law rules. (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977–978, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394; Rosenthal v. Cory (1977) 69 Cal.App.3d 950, 953, 138 Cal.Rptr. 442.) We must also assume that in enacting legislation, the Legislature knew what it was saying and meant what it said. (Educational & Recreational Services, Inc. v. Pasadena Unified Sch. Dist. (1977) 65 Cal.App.3d 775, 782, 135 Cal.Rptr. 594.)
Thus, the restrictive language in section 3602, subdivision (a), with respect to the use of dual capacity applies only to lawsuits against employers. Consequently, nothing in the language of section 3602 immunizes Losse, as a co-employee, from liability or prevents the Hendys from using the dual capacity theory in seeking damages against him.
We conclude the dual capacity doctrine furnishes a basis in this case to avoid the exclusivity provisions of the Act with respect to co-employee Losse, and for this reason, the demurrer as to him was improperly granted.
II
As an alternative theory of liability, the Hendys contend their lawsuit should be allowed to proceed on the theory that Losse fraudulently concealed his injury. For the reasons that follow, we reject the contention.
In Johns–Mansville Products Corp. v. Superior Court, supra, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948, the Supreme Court established an employee's right to sue his employer for aggravating an industrial disease by concealing the existence of the disease and its cause. (See also Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 219 Cal.Rptr. 485, 707 P.2d 858.) In 1982, the Legislature codified Johns–Mansville by amending section 3602. The pertinent language is contained in subdivision (b)(2) of the statute, which provides:
“(b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:
“․
“(2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.”
As noted in part I of this opinion, section 3602 applies only to lawsuits against employers. Therefore, subdivision (b)(2) of that statute provides an escape from the Act's exclusivity provision only when the employer is being sued; it has no application to lawsuits against a co-employee. Further, there is nothing in the language of subdivision (b)(2) that deals with the acts of a co-employee. We conclude this statute should be strictly construed so as “to preserve the spirit of the act and to prevent a distortion of its purposes.” (Eckis v. Sea World Corp. (1976) 64 Cal.App.3d 1, 7, 134 Cal.Rptr. 183.)
Similarly, nothing in Johns–Mansville, supra, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948, deals with the liability of co-employees. In short, Johns–Mansville is a narrow exception to exclusivity. When the Legislature chose to codify it in 1982, it chose not to expand the exception to include co-employee liability. Considering the trend of recent Supreme Court decisions (see e.g., Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743) to narrow the range of exceptions to exclusivity, we likewise are not inclined to expand the Johns–Mansville holding to co-employees.
Based on the foregoing, we find the trial court's conclusion that the Hendys could not state a cause of action against Losse on the basis of concealment of the injury was correct.
III
A.
As Losse concedes, Wanda's loss of consortium cause of action stands or falls with her husband's claims. (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148, 162–163, 233 Cal.Rptr. 308, 729 P.2d 743.) In light of our conclusion that the exclusive remedy provisions of the Act do not preclude the medical malpractice cause of action against Losse, it follows that Losse's demurrer as to the loss of consortium cause of action was improperly granted.
B.
Considerations involving the Act do not pertain here to Wanda's cause of action against the Chargers for loss of consortium. However, the question remains whether the Chargers' demurrer was properly sustained.
As indicated above, the United States District Court dismissed all causes of action against the Chargers with the exception of the one involving the loss of consortium claim. The District Court applied Allis–Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 220, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206 for the proposition that section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) (1982) preempts state-law tort claims in situations where the resolution of the state-law claim substantially depends upon interpreting the terms of the collective bargaining agreement. If the state-law tort claim is “inextricably intertwined with consideration of the terms of the labor contract,” the state-law tort claim is preempted. (Id. at p. 213, 105 S.Ct. at 1912.) In dismissing the first three causes of action, the District Court found that the Hendys had failed to exhaust the grievance procedure contained in their contract with the Chargers.
Thus, with respect to the Chargers, the only cause of action before the state trial court was Wanda's claim for loss of consortium. We have been unable to locate published authority which expressly deals with the issue of whether this type of a claim alone under such circumstances can go forward.20 For the reasons that follow, we conclude Wanda's cause of action may yet be joined with her husband's case in his grievance proceeding with the Chargers.
Under his contract with the Chargers, John Hendy contracted for health care with his employers and agreed to a grievance procedure. Should Wanda, a nonsignatory, be bound by that agreement? California case law is split (see Herbert v. Superior Court (1985) 169 Cal.App.3d 718, 215 Cal.Rptr. 477 for an affirmative answer and Baker v. Birnbaum (1988) 202 Cal.App.3d 288, 248 Cal.Rptr. 336 for a negative answer). Under the circumstances here, we believe the better approach is the Herbert approach, which was adopted by the court in Gross v. Recabaren (1988) 206 Cal.App.3d 771, 253 Cal.Rptr. 820. In Gross, the Court of Appeal held on policy grounds that where an injured spouse had signed an agreement requiring arbitration of negligence claims, the other spouse's loss of consortium claim should be heard in the same arbitration hearing even though she had not signed the arbitration agreement. (Id. at p. 781, 253 Cal.Rptr. 820.) We realize the Gross decision is distinguishable because it involved an arbitration agreement that was in compliance with Code of Civil Procedure section 1295. Nonetheless, we find its public policy arguments persuasive. The Gross court observed there is a “judicially declared preference in favor of joining loss of consortium and negligence claims․” (Id. at p. 781, 253 Cal.Rptr. 820.)
Similarly, here, if Wanda's claim against the Chargers were heard together with her husband's in the arbitration proceeding, the public policy in favor of consolidating claims based on the same facts and legal theories in one proceeding—which enhances judicial economy and consistency of verdicts—would be realized.
Wanda has not presented us with any authority that her loss of consortium claim against the Chargers should go forward in state court while her husband's related claims against the Chargers—the very claims from which her claim springs—proceed in a different forum. The only case she cites in this regard is Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 124 Cal.Rptr. 370, which dealt with whether the statute of limitations would bar the amending of a complaint by an injured spouse to include a loss of consortium claim after the Supreme Court recognized the cause of action in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. The Court of Appeal, which held the amendment would be improper, observed: “Husband's claim to a loss of consortium is a wholly different legal liability or obligation. The elements of loss of society, affection and sexual companionship are personal to him and quite apart from a similar claim of the wife. True, in a sense it is derivative because it does not arise unless his wife has sustained a personal injury, however, his claim is not for her personal injuries but for the separate and independent loss he sustained. [Citation.]” (Bartalo, supra, 51 Cal.App.3d at p. 533, 124 Cal.Rptr. 370.) It is upon this language that the Hendys rely.
We do not quarrel with the language. Since Rodriguez, supra, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, loss of consortium has been recognized in this state as a separate cause of action which is personal to the individual spouse who suffers loss of society, affection and sexual companionship. At the same time, the tort is predicated on the initial injury suffered by the other spouse. In other words, under California law, to establish her cause of action against the Chargers, Wanda must show both damages to herself and a tortious injury by the Chargers to her husband. (Rodriguez, supra, (1974) 12 Cal.3d 382, 408, 115 Cal.Rptr. 765, 525 P.2d 669; see also BAJI No. 14.40.)
While Rodriguez did not mandate joinder, it explicitly declared a preference in favor of joining loss of consortium and negligence claims. (Rodriguez, supra, 12 Cal.3d 382, 407, 115 Cal.Rptr. 765, 525 P.2d 669.) We conclude this is a case that calls for such joinder.21
DISPOSITION
The judgment in favor of Losse is reversed; the judgment in favor of the Chargers is affirmed.
FOOTNOTES
FN1. All statutory references are to the Labor Code unless otherwise specified.. FN1. All statutory references are to the Labor Code unless otherwise specified.
2. Because we must read the facts in favor of the appellants and against the respondents, we assume for the purposes of this appeal that Losse's medical advice to Hendy to continue to play football caused injury to him.
3. For the first time on appeal, the Hendys contend that Losse was an independent contractor to the Chargers and not an employee of the Chargers. For the reasons that follow we deem this is an inappropriate contention to advance here. A civil complaint serves to frame and limit the issues and to apprise the defendant of the basis on which plaintiff seeks recovery. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211–212, 197 Cal.Rptr. 783, 673 P.2d 660.) The complaint also limits the proof that may be submitted because it advises the court and the adverse party of what plaintiff relies on as a cause of action. (Roth v. Cottrell (1952) 112 Cal.App.2d 621, 624, 246 P.2d 958.) In a complaint, the plaintiff must allege every fact that he or she must prove. (Gunderson v. Gunderson (1935) 4 Cal.App.2d 257, 260, 40 P.2d 956.) We note here the complaint alleges that Losse was “the agent and employee of defendant San Diego Chargers Football Company ․ and, in doing the acts herein described and referred to, was acting within the course and scope of his authority as such agent and employee․” Generally, a party is not permitted to change its position on appeal and raise new issues not presented in the trial court. (Estate of Westerman (1968) 68 Cal.2d 267, 279, 66 Cal.Rptr. 29, 437 P.2d 517.) This is particularly true “when the new theory depends on controverted factual questions whose relevance thereto was not made to appear” in the trial court. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780, 97 Cal.Rptr. 657, 489 P.2d 537.) At no time did the Hendys argue below that Losse was an independent contractor or any facts that would support that position. While an appellate court may consider new theories on appeal from the sustaining of a demurrer (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959, 230 Cal.Rptr. 192), this can be done only when the issue is a pure question of law, which is presented by undisputed facts (Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512). Here, as indicated above, there are no facts to support the Hendys' new theory of independent contractor liability. In light of our disposition, we leave to the trial court any question whether the doctrine of independent contractor may become part of this case through additional pretrial procedures.
4. The trial court gave the following reasons for its decision to sustain the demurrers without leave to amend:“Plaintiffs cite Hoffman vs. Rogers, 22 Cal App 3rd [6]55 [99 Cal.Rptr. 455] (1972), which is factually on point with the case at bar. However, Hoffman pre-dates the 1982 amendment to Labor Code Section 3602, which provides that workers compensation is the exclusive remedy even where there is a dual capacity situation.“Subsection (b)(2) creates an exception which Plaintiffs contend applies in this case. This exception only applies where there is ‘fraudulent concealment of the existence of an injury and it's [sic] connection with the employment’.“Nowhere does Plaintiff allege that either Defendant concealed the ‘existence of the injury’ or concealed the injury's connection with the Plaintiff's employment. Plaintiff does not allege that he did not know of the injury or it's [sic ] resulting from playing football for the Chargers. Plaintiff's allegations relate to Defendant's concealment of the extent of the injury, thereby causing further aggravation of the injury. The legislature did not create an exception to Worker's Compensation where the employer fraudulently conceals the extent of the injury.“Plaintiffs have not plead [sic ] within the two conjunctive portions of the (b)(2) exception and there does not appear to be any basis for concluding that they could possibly amend their complaint so as to come within that exception. Therefore the demurrers should be sustained without leave to amend.”
5. Another way of explaining the dual capacity doctrine is: “ ‘Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.’ ” (Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103, 107–108, 137 Cal.Rptr. 797, quoting 2A Larson, Law of Workmen's Compensation (1976) § 72.80, at p. 14–112.)
6. A different result was reached in Wickham v. North American Rockwell Corp. (1970) 8 Cal.App.3d 467, 87 Cal.Rptr. 563 and in Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499, 125 Cal.Rptr. 872. Losse relies heavily on Wickham, in which the Court of Appeal affirmed the sustaining of a demurrer in a lawsuit against a company doctor who negligently diagnosed the plaintiff's chest X-ray, which was part of a regular system of periodic checkups provided by the employer. We conclude Losse's reliance is misplaced for two reasons. First, the case is inapposite because the plaintiff in Wickham did not allege the failure to diagnose the inflammation of his lungs aggravated an industrial injury. (8 Cal.App.3d at p. 471, 87 Cal.Rptr. 563.) Here, we are concerned with the aggravation to Hendy's initial industrial injury caused by Losse's negligence. Second, Wickham did not correctly apply the Supreme Court precedent of Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8, in that Wickham did not consider the part of the Duprey holding that found the employee chiropractor liable.
7. In 1959, the Legislature amended section 3601 to provide for co-employee immunity. (Stats.1959, ch. 1189, § 1, p. 3275.)
8. Cole, supra, 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, was decided after the 1982 amendments to the Act, but the opinion applied pre–1982 law since the facts of the case predated the legislative amendments.
9. See also Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 560–561, 237 Cal.Rptr. 568, 737 P.2d 771, in which the Supreme Court also recognized the continued vitality of the dual capacity doctrine within the narrow confines of the 1982 amendments to the statute.
10. However, we note the eminent scholar in workers' compensation law, Professor Arthur Larson, has leveled cogent criticism at California for its use of the dual capacity theory as developed in Duprey, supra, 39 Cal.2d 781, 249 P.2d 8 and expanded in later cases. (See 2A Larson, Workmen's Compensation Law (1987) §§ 72.61(b), 72.61(c), 72.81(a), 72.81(c).) Larson characterizes California's approach as unsound and based on fallacious legal reasoning. (Larson, supra, at pp. 14–228.46, 14–228.47.) Moreover, California is in the minority. The majority of jurisdictions hold that if the statute excludes co-employees from the range of third parties subject to lawsuit, a doctor employed by the same employer as the plaintiff employee is sheltered by the exclusive remedy provision of the workers' compensation law. California's adherence to the dual capacity theory places it in the minority. (Larson, supra, at pp. 14–228.41—14–228.47.)
11. Section 3706 provides a right to elect a tort action for damages in lieu of compensation under the Act if the employer fails to secure the payment of compensation.
12. Before the 1982 amendment, section 3600 provided in part: “Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as provided in Section 3706, shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur: [¶] (a) Where, at the time of the injury, both the employer and employee are subject to the compensation provisions of this division. [¶] (b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment. [¶] (c) Where the injury is proximately caused by the employment, either with or without negligence. [¶] (d) Where the injury is not caused by intoxication of the injured employee. [¶] (e) Where the injury is intentionally self-inflicted. [¶] (f) Where the employee has not willfully and deliberately caused his own death. [¶] (g) Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor. [¶] (h) Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties, except where the activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment․”
13. In 1982, before the amendment, section 3601, subdivision (a), provided: “Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, except as provided in Section 3706, the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment, except that an employee, or his dependents in the event of his death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against such other employee, as if this division did not apply, in either of the following cases: [¶] (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of such other employee. [¶] (2) When the injury or death is proximately caused by the intoxication of such other employee.”
14. In 1982, before the amendment, section 3602 provided: “In all cases where the conditions of compensation do not concur, the liability of the employer is the same as if this division had not been enacted.”
15. Section 3600, subdivision (a), provides in part: “Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur: ․” This is followed by a listing of the conditions of compensation in the same substantive language as was used in the former section, except for the addition of a new requirement that the injury not be caused by a felonious act of the injured employee. (§ 3600, subd. (a)(8).)
16. Section 4558 applies to injury on a power press on which the employer has failed to install or has removed a point of operation guard.
17. Section 3601, subdivision (a), provides: “Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases: [¶] (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee. [¶] (2) When the injury or death is proximately caused by the intoxication of the other employee.”
18. Section 3602 provides: “(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer, and the fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer. [¶] (b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: [¶] (1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer. [¶] (2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer. [¶] (3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person. [¶] (c) In all cases where the conditions of compensation set forth in section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.”
19. For the same conclusion see Larson, supra, § 72.61(b), p. 14–228.47, fn. 65.1.
20. We have come across one authority from another jurisdiction in which the court applied Ohio law and held a loss of consortium claim could proceed when the original injury to the other spouse is preempted by federal law. (Adkins v. General Motors Corp. (S.D.Ohio 1983) 556 F.Supp. 452, 458.)
21. While we realize that under the District Court's order the arbitration would proceed without consideration of Wanda's claim, we note that the District Court's order is not final. Since that decision is not final, in our view, Wanda's claim may yet be joined with her husband's case in the arbitration proceeding with the Chargers.Upon proper application the superior court may entertain the propriety of ordering Wanda's claim against the Chargers joined with John Hendy's arbitration under the collective bargaining agreement.Should the federal proceedings result in the retransfer of John Hendy's injury claim to the superior court for adjudication, the superior court may again entertain Wanda Hendy's companion loss of consortium claim in that proceeding. In such event, this opinion does not foreclose any defenses raised in this appeal but not considered by this court.
TODD, Acting Presiding Justice.
NARES and WIEN,* JJ., concur.
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Docket No: No. D010557.
Decided: October 02, 1990
Court: Court of Appeal, Fourth District, Division 1, California.
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