Old Republic Const. Program Group v. Boccardo Law Firm

BACKGROUND

A. The Carabello Action Defendants Boccardo and Stein filed an action for damages in San Joaquin Superior Court on behalf of Albert Carabello, alleging that he had been injured when his pickup collided with a vehicle operated by Beverly Casby, the defendant in that action.1 Casby was insured under a policy of automobile insurance with liability coverage of $100,000. It is apparently undisputed that at the time of the collision, Carabello was acting in the course and scope of his employment. Plaintiff Old Republic was the workers’ compensation insurer for Carabello’s employer. It provided benefits which it claims exceeded $100,000. It filed a complaint in intervention in the San Joaquin action, asserting a right to reimbursement of these expenditures. In answer to both Carabello’s and Old Republic’s complaints, Casby raised the affirmative defense of Witt v. Jackson (1961) 57 Cal.2d 57, which limits the ability of an employer, or its insurer, to obtain reimbursement out of an injured worker’s recovery against a third party where the employer’s own negligence contributed to the worker’s injuries. (See 2 Witkin, Summary of Cal. Law (10th ed. 2005) Workers Compensation, §…