Marrujo

This is an appeal from an order of the superior court allowing the lien claim of a workmen’s compensation insurance carrier against the proceeds of a settlement which appellants, plaintiffs, in a wrongful death action, made with three of the four defendants in that action.

*975 Appellants are the widow and children of decedent Joaquin S. Marrujo. On September 18, 1973, they filed a wrongful death action against three physicians and a hospital, alleging in their complaint that the decedent’s death on October 20, 1972, following a lumbar laminectomy on that date, was the result of defendants’ malpractice and negligence. Defendants filed answers denying all allegations of the complaint. One defendant, Dr. Hunt, in addition pleaded affirmative defenses of contributory negligence and assumption of the risk on the part of the decedent.

Respondent is the workmen’s compensation insurance carrier of decedent’s employer. Prior to commencement of the action, respondent paid $23,675 in settlement of the widow’s claim for death benefits (Lab. Code, § 4700 et seq.) under the Workmen’s Compensation Act after having initially contested the claim on the issue of industrial causation.…

I dissent.

This case involves a question of interpretation of 1971 amendments to Labor Code sections 3859 and 3860. Subdivision (b) of section 3859 was amended in 1971 to provide: “Notwithstanding anything to the contrary contained in this chapter, an employee may settle and release any claim he may have against, a third party without the consent of the employer. Such settlement or release shall be subject to the employer’s right to *980 proceed to recover compensation he has paid in accordance with Section 3852.”

Prior to the 1971 amendment to Labor Code section 3860, subdivision (b), that subdivision provided that the entire amount of settlement made between an insured employee and a third-party tortfeasor, with or without suit, was subject to the employer’s (carrier’s) full claim for reimbursement for compensation paid to the injured employee and for other expenses incurred on the latter’s behalf. The 1971 amendment to subdivision (b) of section 3860 of the Labor Code prefaced the provisions thereof, which made the amount of settlement subject to the employer-carrier’s claim for reimbursement, with the phrase: “Except as provided in Section 3859.”

Prior to the 1971 amendment…

Zonni, Ginocchio & Taylor and Martin R. Weinberger for Claimant and Respondent.

OPINION

DUNN, J.

This is an appeal from an order of the superior court allowing the lien claim of a workmen's compensation insurance carrier against the proceeds of a settlement which appellants, plaintiffs, in a wrongful death action, made with three of the four defendants in that action.

Appellants are the widow and children of decedent Joaquin S. Marrujo. On September 18, 1973, they filed a wrongful death action against three physicians and a hospital, alleging in their complaint that the decedent's death on October 20, 1972, following a lumbar laminectomy on that date, was the result of defendants' malpractice and negligence. Defendants filed answers denying all allegations of the complaint. One defendant, Dr. Hunt, in addition pleaded affirmative defenses of contributory negligence and assumption of the risk on the part of the decedent.

Respondent is the workmen's compensation insurance carrier of decedent's employer. Prior to commencement of the action, respondent paid $23,675 in settlement of the widow's claim for death benefits (Lab. Code, § 4700 et seq.) under the Workmen's Compensation…