Luque

An employee was injured in an automobile accident while driving in the course and scope of his employment. The employee’s attorney obtained a settlement from a third party tortfeasor. The employer’s workers’ compensation reimbursement claim exceeded the amount of the settlement fund. The trial court awarded the employee’s attorney fees out of the settlement fund.

We hold the employee’s attorney is entitled to an award of fees even though the employer participated in the litigation and its reimbursement claim exceeded the amount of the settlement. (Lab. Code, § 3860.)

Facts

Fidel Herrera injured Carmen G. Luque in an automobile accident for which Herrera was solely at fault. At the time of the accident Luque was acting in the course and scope of his employment.

Luque filed a claim for workers’ compensation benefits with the Fremont Compensation Insurance Company. Luque also filed an action for damages against Herrera.

Fremont paid $21,670 in compensation benefits to Luque. Fremont filed suit against Herrera for recovery of the compensation benefits paid. Pursuant to stipulation the trial court consolidated Luque’s and Fremont’s cases against Herrera. The consolidated…