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Juan Suarez sustained a cumulative injury to his low back and neck through September 8, 1993 (ADJ365717) while employed by Haley Brothers insured by Unicare Insurance and a specific injury to his low back and neck on July 27, 1986 (ADJ3469175) while employed at T.M. Cobb Company insured by Liberty Mutual.

In a 1997 Stipulations with Request for Award, Liberty Mutual paid Unicare $25,000.00 in full satisfaction of its contribution issue to resolve any and all future claims for contribution. Unicare agreed to assume full and sole responsibility for all future payment of benefits

Unicare is now insolvent and its claims are administered by the California Insurance Guarantee Association (CIGA). CIGA took the position that Liberty Mutual was “other insurance” despite the wording of the Stipulation. Thus the issue submitted at a January 2020 trial was: “Is Liberty Mutual liable for the administration of this claim and possible reimbursement and contribution to the California Insurance Guarantee Association.”

The WCJ agreed with CIGA and found that Liberty Mutual is available “other insurance” and ordered that Liberty Mutual take over administration of applicant’s medical care and resolve reimbursement and contribution issues with CIGA.

But Liberty Mutual’s Petition for Reconsideration of this order was granted in the panel decision of Suarez v Haley Bros/TM Cobb (ADJ365717 – ADJ3469175) (Feb 2022)

In order to obtain reimbursement or a change of administrators, CIGA must show that Liberty Mutual is jointly and severally liable for medical treatment.

The panel discussed the Court of Appeal decision in California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (Lopez) (2016) 245 Cal.App.4th 1021 (81 Cal.Comp.Cases 317), where a final award apportioning liability between insurers did not change the joint and several nature of defendants’ liability.

In Lopez, the insurers agreed, in a compromise and release agreement, that the insurers would apportion liability for the remaining liens according to proof and with rights to contribution and reimbursement between the two being reserved. The Lopez Court noted that the carriers understood their liability remained joint and several even after settlement and apportionment

However in this case, Unicare Insurance settled its contribution rights as part of the Stipulated Award, and, significantly, the award issued solely against Unicare. Applicant was a signatory to these stipulations, including the stipulation that only Unicare would be liable for benefits. Therefore, after the settlement, Liberty Mutual no longer had any liability for benefits to Mr. Lopez and he could only obtain medical treatment benefits from Unicare.

There cannot be joint and several liability where one party has no liability. Accordingly, the panel granted reconsideration and found that Liberty Mutual is not liable for applicant’s medical treatment and CIGA is not entitled to reimbursement from them.