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Sacramento Lopez was injured while working for Elena Delgadillo and and Jesus Cortez. He sued them in superior court, seeking damages for the injury and also alleging violations of various wage and hour laws. In response to an interrogatory request propounded during discovery, the employer admitted they did not have workers’ compensation insurance covering Lopez’s injury. The employer later reversed course and contended they did have insurance, relying on a workers’ compensation policy purchased for a different employment site, which they argued also covered the employment site where Lopez was injured. Their insurance company denied coverage and the employer filed a separate lawsuit against the insurance company and others (the insurance action), naming Lopez as an indispensable party. The employer voluntarily dismissed with prejudice the insurance action prior to trial in Lopez’s lawsuit.

After a jury verdict in Lopez’s favor, the trial court entered judgment awarding Lopez unpaid wages and penalties for the wage and hour violations, and damages (medical expenses and noneconomic losses) for the workplace injury. The trial court subsequently awarded Lopez attorney fees, including fees for work performed in the insurance action “because that action was closely related with this action and useful to its resolution.” The employer appealed, and the court of appeal sustained the judgment in the unpublished case of Lopez v. Delgadillo.

With respect to the arguments about the exclusive remedy under workers compensation, if an employer has failed to obtain workers’ compensation insurance or permission from the state to self-insure, the employee may bring a civil action for damages. (Labor Code, §§ 3700, 3706.). In this case the employer failed to properly plead and prove that it had proper workers’ compensation insurance.

The employer sought, over Lopez’s objection, to present evidence at trial of Lopez’s drug and alcohol use at the time of his injury. The trial court excluded the evidence as more prejudicial than probative under Evidence Code section 352, and refused appellants’ request for a jury instruction regarding intoxication. The court of appeal agreed with the ruling. In lawsuits seeking damages for workplace injuries when the employer failed to obtain workers’ compensation insurance (§ 3706), “it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence” (§ 3708). After the California Supreme Court replaced contributory negligence with comparative negligence, this statute was construed to preclude a defense of the employee’s comparative negligence. (Logan v. Masters (1981) 120 Cal.App.3d 145, 147-148 [“[c]omparative negligence, like contributory negligence, is unavailable to the employer,” otherwise “uninsured employers would have a potential advantage over insured employers, a result clearly contrary to the Legislature’s intent”].) Accordingly, any evidence of Lopez’s drug and alcohol use to show his negligence was properly excluded.