Multiple defendant cases can present a slew of issues when it comes to discovery. Does each defendant have a right to their own panel physician? Does applicant have the ability to obtain multiple medical reports because two defendant’s are involved in litigation? How is liability to be determined between defendants where multiple reports are obtained?

It is an interesting conundrum, one that long settled application of laws on liability and contribution, intersect with recent changes in discovery rights. This issue was most recently highlighted by panel decision, Chanchavac v LB Industries, Inc. 2015 Cal.Wrk.Comp. P.D. Lexis 516. This case involved a claim filed against one employer with multiple insurance carriers. The WCAB held that because applicant had not elected against either defendant, each defendant was entitled to obtain an independent medical legal report through the panel process.

The court relied on Labor Code §5500.5(c) conferring the ability on applicant to elect against either insurance company to proceed against with regard to her claim. Applicant’s desire not to elect against either party allowed both parties to go forward with their discovery rights. Labor Code §5500.5(c) allows for election, although not expressly against multiple carries, but rather against one of multiple employers. Case law has inferred the statute to include an election against one of multiple carriers when the employee works for one employer with multiple carriers on the risk during the period of occupational disease or cumulative injury.

Historical Review on Election: Party election against the employer and/or insurance dates back to at least 1946 and the California Supreme Court Case, Colonial Insurance Company v. Industrial Accident Commission, (1946) 29 Cal.2d 79. That case held “in progressive occupational diseases, the employee may, at his option, obtain an award for the entire disability against any one or more of successive employers or successive insurance carriers if the disease and disability were contributed to by the employment furnished by the employer chosen or during the period covered by the insurance even though the particular employment is not the sole cause of the disability.”

Election against one defendant amongst multiple carriers for one employer was established by the WCAB en banc in Thomas G. Scrimpf v. Consolidated Film Industries, Inc.; Employers Mutual Liability Company of Wisconsin, 42 CCC 602. The WCAB held “in accordance with Colonial Insurance Company that the applicant in a continuing trauma occupational disease case may elect against one or more carriers where there is one employer involved, reserving the right to contribution of the elections carrier against the other carriers.”

The Scrimpf case, however, further held that the election is permissive rather than mandatory allowing the employee to elect, but leaving discretion with the court as to accept or refuse that election.

Roman Barrozo v. WCAB, Whiting-Turner Construction, Liberty Mutual Insurance Company (1993) 58 CCC 157 is a writ denied case out of the second appellate district which confers on the court a duty to inquire into the election made by applicant to confirm that fundamental fairness is provided within the election. In the Barrozo case the employee under a Union contract worked for 12 employers with exposure to 23 insurance companies during the year of exposure. Applicant elected against Whitting-Turner although it was developed that his employment with this company was for eight and one half hours, on one day, five months prior to the end date of the cumulative injury period of exposure. The court reasoned that the last employer or the employer with the greatest exposure to liability during the period of cumulative trauma should be responsible for payment of compensation with the right of contribution from the other employers. In the Barrozo case, the election against Whitting-Turner was rejected by the WCAB on reconsideration and returned to the court to inquire as to elements to be addressed.

Where an appropriate election is made, the unelected defendant is shut out of the discovery process until the question of the employee’s rights to benefits has been established. Callie Kelm v. Koret of California and American Motorists Insurance Company (1980) 46 CCC 113. Thus, when an election is made the defendant that is elected against is the party to proceed with the initial discovery process. The unelected party would have no recourse until benefits are assessed. Once benefits are assessed however, the unelected defendant would have full discovery rights to include exploration on the issue of liability.

With this background, where does it leave the parties in terms of discovery? Unless an election is made by applicant and confirmed by the court, each defendant is free to conduct discovery to include issues of liability. Each defendant has an independent right to set applicant’s deposition or obtain a medical legal evaluation. This would include the ability to obtain a panel list of Qualified Medical Examiners from the Medical Unit, if appropriate. If applicant were to elect against one party, that election should be addressed by the court as they have final discretion over the election process. If the election is confirmed, the party elected against would be the only party afforded discovery until the right of benefits has been conferred. The defendant elected against would also be responsible for the entire exposure subject to contribution.

Where no election is made and multiple reports are produced discretion lies with the court as to the weight of the evidence. A determination can address issues of liability, but should not address issues of contribution. Those matters are set aside pursuant to Labor Code §5275 which requires mandatory arbitration with regard to insurance coverage and right of contribution. If benefits are conferred at the time of trial, they would be held by the named parties joint and severally.

In terms of discovery, can the election be used to limit discovery rights? An applicant by electing against one party may limit the ability of additional defendants from taking a deposition or obtaining a medical legal examination. If, however, the applicant does not make a proper election which must be confirmed by the court, all parties may proceed with full discovery rights.

While election rights may allow discovery by multiple defendants where an election has not been made, also note that an applicant may use the election process to his advantage as well. By failing to elect, an applicant may initiate the medical legal review process through one defendant and upon failure of that report to identify industrial exposure, use the secondary defendant to initiate the discovery process again in an attempt to obtain a second bite at the apple. Under these circumstances, it behooves defendants to expedite the matter to the WCAB, who maintains discretion rights over the discovery process in order to ensure proper procedure is being maintained.