CACI 3965 No Deduction for Workers’ Compensation Benefits Paid

New September 2003; Revised December 2009; Renumbered from CACI No. 3963 November 2018

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This instruction is intended for use in conjunction with a special verdict form if the judge may need to make deductions from the verdict to avoid a double recovery. It may also be read if there are no allegations regarding the employer’s comparative fault.

•“Since the employer was not negligent, the death benefits paid did not constitute an impermissible double recovery but rather a payment for plaintiff’s loss from a source wholly independent of the wrongdoer.” (Curtis v. State of California ex rel. Department of Transportation (1982) 128 Cal.App.3d 668, 682 [180 Cal.Rptr. 843].)

•“Here the collateral source was workers’ compensation benefits paid by the [defendant]’s policy. Under the general principles just described, this would not be an independent source; defendant is the policyholder, so the collateral source rule would not apply. Yet the California Supreme Court held that the rule did apply in a case in which an employee received benefits from the employer’s workers’ compensation policy and then sued a third party tortfeasor, the compensation insurer having waived its right of subrogation against the third party.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 637 [210 Cal.Rptr.3d 362] [action by employee against employer on claim alleged to not be within scope of employment].)

•“ ‘The average reasonably well-informed person who may be called to serve upon a jury knows that a workman injured in his employment receives compensation. It is a delusion to think that this aspect of the case can be kept from the minds of the jurors simply by not alluding to it in the course of the trial.’ ” (Berryman v. Bayshore Construction Co. (1962) 207 Cal.App.2d 331, 336 [24 Cal.Rptr. 380], internal citations omitted.)

•“To prevent a double recovery, the court may instruct the jury to segregate types of damage as between the employee and employer, awarding to the employee only those tort damages not recoverable by the employer.” (Demkowski v. Lee (1991) 233 Cal.App.3d 1251, 1259 [284 Cal.Rptr. 919], footnote omitted.)

•“Alternatively, the jury may generally be instructed on the types of tort damages to which the employee may be entitled and then given a special verdict form that requires the jury to find whether the defendant was negligent, whether the negligence was the proximate cause of the employee’s injuries, what the employee’s total tort damages are, without taking into account his or her receipt of workers’ compensation benefits, and what the reasonable amount of benefits paid by the employer were. Thereafter, the court enters individual judgments on the special verdict for the amounts to which the employee and employer are entitled.” (Demkowski, supra, 233 Cal.App.3d at p. 1259, footnote omitted.)

•“Prior to Proposition 51, a negligent third party was allowed an offset for the workers’ compensation benefits paid to the plaintiff. This prevented double recovery under the then-existing joint and several liability rule. Proposition 51, however, limited joint and several liability to plaintiff’s economic damages.” (Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187, 197 [78 Cal.Rptr.2d 861].)

•“The Espinoza approach has provided an effective solution for preverdict settlements, and we believe that it is also the most suitable means of dealing with workers’ compensation benefits.” (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 37 [56 Cal.Rptr.2d 455].)