WOODCOCK v. Argonaut Insurance Company, Plaintiff in Intervention and Respondent. (1968)

This action was brought by respondent Waldo E. Woodcock to recover damages for injuries suffered in the collapse of a pile of steel scaffolding frames placed on a construction site by appellant Fontana Scaffolding and Equipment Company.   Appellant's answer alleged negligence on the part of Woodcock's employer, Barrett Construction Company, and claimed a setoff of the workmen's compensation benefits Woodcock had received.   Argonaut Insurance Company, Barrett's workmen's compensation carrier, first file a $4,311.76 lien claim under Labor Code section 3856 against any recovery, and then intervened as a party in order to protect its lien claim against the allegation that the employer was negligent.

The jury returned a verdict for plaintiff in the sum of $13,000, accompanied by a special finding that negligence on the part of the employer contributed to the accident.   Respondent moved for a new trial upon the ground of inadequate damages, and appellant at the same time moved to correct the judgment under Code of Civil Procedure section 663, contending that under the rule of Witt v. Jackson (1961) 57 Cal.2d 57, 72, 17 Cal.Rptr. 369, 366 P.2d 641, the $4,311.76 of workmen's compensation benefits should have been deducted from the award.   Both motions were denied;  only the defendant appeals.

Appellant points out that the court, after explaining generally the potential application of the Witt rule, instructed the jury:  “Now, if you determine that the plaintiff is entitled to recover against the defendant, then, you would determine the full amount of the damages and insert it in that blank there.   Do not subtract this other compensation claim.   You determine the whole amount of the damages.   The Court will determine the other situation.”   Thus, appellant contends, the judge advised the jury to assess damages in the expectation that he would deduct the workmen's compensation benefits if such action were called for by a special finding of employer negligence, but changed his mind and refused to make the deduction.   Respondent defends the court's refusal to deduct $4,311.76 by pointing to language in the court's instructions limiting recovery of medical costs to “The reasonable value, not exceeding the cost to plaintiff,” of reasonably necessary medical treatment.  (Emphasis added.)   Similarly, the court advised the jury that recovery for loss of earnings was to be limited to “the loss which the evidence shows with reasonable certainty to have been suffered by him * * * ”  (Emphasis added.)   Thus, it is contended, the jury in applying these definitions of allowable damages, must have excluded from its award to Woodcock the $4,311.76 compensation benefit representing medical costs and compensation indemnity paid not by Woodcock but by Argonaut.

To summarize, appellant contends that the court instructed the jury to determine the full amount of the damages and not subtract the compensation claim.   Appellant assumes that the $13,000 verdict represented Woodcock's total damages plus $4,311.76;  therefore it was error, under Witt v. Jackson, supra, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, not to subtract the compensation claim.   Respondent contends that the jury was correctly instructed on the rule of Witt v. Jackson.   Therefore since it found that negligence on the part of Barrett was a proximate cause of the accident, the jury's verdict did not include the $4,311.76.

 Appellant does not attack the instructions;  indeed, because the record on appeal does not indicate who submitted the instructions we may presume that the instructions in question were proposed by appellant.  (Lynch v. Birdwell (1955) 44 Cal.2d 839, 847, 285 P.2d 919.)   We are therefore limited to a consideration of the verdict.

 The verdict, though accompanied by the special finding, was ambiguous in not specifying whether the award was intended to include compensation benefits already paid by Argonaut.   We have seen that the ambiguity is not resolved by a resort to the instructions.   In a comparable situation the Court of Appeal declared, “If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict.   Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.  [Citations.]  Otherwise, it is the function of the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.”  (Fernandez v. Consolidated Fisheries, Inc. (1953) 117 Cal.App.2d 254, 263, 255 P.2d 863.)   When the jury returned an ambiguous verdict, appellant had an opportunity to request a more formal and certain verdict.   This was not done.   Appellant did, however, move to vacate the judgment based upon this verdict on the grounds that the $13,000 judgment should have been decreased by $4,311.76.   The judge denied the motion, thus in effect interpreting the verdict;  i.e., he concluded that the jury excluded the $4,311.76 from the verdict.   We cannot say that his determination was erroneous.

Appellant points out that if the special finding had determined that the employer was not negligent, the same ambiguity would have existed but the court could not have resolved it in the same manner because Argonaut would have been entitled to a judgment of $4,311.76 on its complaint in intervention, and that sum would have had to be paid out of the award to Woodcock.   But the point is of no assistance to appellant, as the obligation to call the ambiguity to the attention of the court would have been with Woodcock, and he might immediately have done so, with the result that the court could have sent the jury out to make the verdict more certain.

The judgment and order appealed from are affirmed.

CHRISTIAN, Associate Justice.

DEVINE, P.J., and RATTIGAN, J., concur.