Kirk Hollingsworth was involved in a fatal accident while working for defendant Heavy Transport, Inc. in June 2016. His wife, Leanne Hollingsworth, and son, Mark Hollingsworth, filed a wrongful death complaint in superior court on January 22, 2018.

Plaintiffs alleged that Heavy Transport did not have workers’ compensation insurance. They also alleged that defendant Bragg Investment Company purported to have merged with Heavy Transport in 1986, but that the two companies had always maintained separate operations. Plaintiffs asserted that Bragg “sought to extend Worker’s Compensation Benefits” to them. Plaintiffs also alleged that defective Bragg equipment contributed to the incident.

On March 14, 2018, Bragg and Heavy Transport filed an application for adjudication of claim with the WCAB. The application listed Bragg as the employer, included insurance information, and noted that a lawsuit had been filed.

Bragg and Heavy Transport demurred to plaintiffs’ complaint. They asserted that Heavy Transport was a fictitious business name for Bragg, and therefore they were the same entity. Bragg had a workers’ compensation policy that covered the accident, so plaintiffs’ action was barred by workers’ compensation exclusivity. The Superior Court overruled the demurrer.

In December 2018 the WCAB determined that the accident had occurred in the course of decedent’s employment. The WCAB then set a hearing for February 19, 2019 to determine if any applicable workers’ compensation insurance covered the incident.

Defendants made an application to the Superior Court that the civil case be stayed until the WCAB determined the insurance issue, which would then determine which tribunal had exclusive jurisdiction. Plaintiffs also had filed a motion with the WCAB to stay those proceedings, but rather than grant the motion, the WCAB set the case for trial before a WCAB arbitrator on June 6, 2019, on the issue of insurance coverage. The Superior Court conceded jurisdiction to the WCAB on the issue of insurance coverage.

Plaintiffs then filed a petition for writ of mandate in the Court of Appeal , and requested an order staying the June 6 arbitration scheduled in the WCAB proceeding. It issued an alternative writ and an order staying the WCAB proceedings, and requested briefing from the parties.

This case presented a relatively simple question: Which tribunal – the superior court or the WCAB – should resolve the questions that will determine whether the superior court or the WCAB has exclusive jurisdiction over plaintiffs’ claims?

The Supreme Court in Scott v. Industrial Acc. Commission (1956) 46 Cal.2d 76, 81, decided this issue in 1956, and held that whichever tribunal exercised jurisdiction first should make the necessary findings to determine which tribunal has exclusive jurisdiction over the remainder of the matter.

The Court of Appeal followed that rule, and found that the trial court erred by deferring to the WCAB to determine jurisdiction in the published case of Hollingsworth et al., v. The Superior Court of Los Angeles County et al., (2019) 84 Cal.Comp.Cases 718.

The WCAB argued the statement in Sea World Corp. v. Superior Court (1973) 34 Cal.App.3d 494, at p. 501 that “[p]recedential jurisdiction” – concurrent jurisdiction to determine exclusive jurisdiction – “may be the subject of waiver by the court having it.”

In Sea World the court cited Scott and several similar cases, and noted that “the court where jurisdiction first attaches may yield it, and that it is the right of the court to insist upon or waive its jurisdiction.” Here, however, the evidence does not support a finding of waiver or estoppel, and neither the WCAB or defendants assert facts to support such a finding.

To the contrary, from the initiation of the action, plaintiffs and defendants consistently asserted their respective positions regarding jurisdiction, unlike the employer in Sea World. Thus, waiver or estoppel does not compel us to depart from the rule in Scott.

Here, the superior court exercised jurisdiction first. Plaintiffs’ complaint was filed on January 22, 2018, and defendants’ demurrer was filed on March 5, 2018. Defendants’ WCAB application was filed on March 14, 2018. Under Scott, the appropriate tribunal to determine the question of exclusive jurisdiction is the superior court, because that tribunal exercised jurisdiction first.