California Civil Jury Instructions (CACI)

2802. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2)) - Essential Factual Elements

[Name of plaintiff] claims that [he/she/[name of decedent]] was harmed because [name of defendant] fraudulently concealed the fact that [name of plaintiff/decedent] had been injured on the job. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff/decedent] was injured on the job;

2. That [name of defendant] knew that [name of plaintiff/ decedent] had suffered a job-related injury;

3. That [name of defendant] concealed this knowledge from [name of plaintiff/decedent]; and

4. That [name of plaintiff/decedent]'s injury was made worse as a result of this concealment.

If [name of plaintiff] establishes this claim, [he/she] must prove the total damages caused by the injury. [Name of defendant] must prove the damages that [name of plaintiff/decedent] would have sustained even if [name of defendant] had not concealed the injury. [Name of plaintiff] is entitled to recover the difference between the two amounts.

Directions for Use

This instruction is intended for cases where the employer is the defendant and the plaintiff alleges the case falls outside of the workers' compensation exclusivity rule. This instruction pertains to aggravation of an injury caused by concealment.

Sources and Authority

Labor Code Section 3602(b)(2) provides: "An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, . . . [w]here the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be imited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer."

"[T]he 1982 amendments were not intended to provide an exhaustive list of exceptions to the exclusivity rule. They did not, for example, foreclose the recognition of an exception for injuries stemming from wrongful discharges that violated public policy, an issue that neither the Legislature nor the judicial system had confronted in 1982. Section 3602 only applies '[w]here the conditions . . . set forth in section 3600 concur,' and does not purport to resolve the ambiguities in that latter section discussed above, nor to definitively delineate the scope of the compensation bargain that has been the key to construing the meaning of section 3600. Rather, section 3602 merely confirms the judicial recognition of certain types of employer acts as outside the compensation bargain, even as it reinforces the exclusivity rule by repealing the dual capacity doctrine." (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18, 872 P.2d 559], internal citation omitted.)

"In general, the Workers' Compensation Act provides an employee with his or her exclusive remedy for a work-related injury. Subject to narrow exceptions, 'where the . . . conditions of compensation concur,' an injured employee cannot maintain a civil action against his or her employer or another employee." (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430 [124 Cal.Rptr.2d 227], internal citation omitted.)

"[A]n employee seeking to state a cause of action against an employer under section 3602(b)(2) must 'in general terms' plead facts that if found true by the trier of fact, establish the existence of three essential elements: (1) the employer knew that the plaintiff had suffered a work-related injury; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment." (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 89-90 [120 Cal.Rptr.2d 741], internal citation omitted.)

"While there are no cases defining the term 'fraudulent concealment' as used in the section, its general meaning is not difficult to discern. According to both statute and case law, the failure to disclose facts may constitute fraud if the party with knowledge has a duty to make disclosure. We have no reason to believe that the term 'fraudulent concealment' as used in subdivision (b)(2) was intended to have a eaning other than this." (Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 309-310 [219 Cal.Rptr. 485, 707 P.2d 858], internal citations omitted.)

"An employer's actual knowledge of the existence of an employee's injury connected with the employment is a necessary prerequisite to establishing a claim against the employer for fraudulent concealment under section 3602(b)(2). This principle is based on the rationale that an employer cannot be held liable under section 3602(b)(2) for concealing something of which it had no knowledge." (Palestini, supra, 99 Cal.App.4th at p. 93, internal citations omitted.)

"In order to succeed in their attempt to remove their case from the workers' compensation law, appellants first had to show an 'injury.' They then had to prove that the injury was aggravated by Firestone's fraudulent concealment of the existence of the injury and its connection with the employment." (Santiago v. Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1330 [274 Cal.Rptr. 576], internal citation omitted.)

"The Supreme Court in Johns-Manville recognized that the aggravation of an injury that results when an employer fraudulently conceals the injury's cause is a harm distinct from the injury itself. For this reason, aggravation that results when an employer fraudulently conceals an injury's cause remains actionable even though the injured party has recovered worker's compensation benefits for the injury itself." (Aerojet General Corp. v. Superior Court (1986) 177 Cal.App.3d 950, 956 [223 Cal.Rptr. 249], internal citation omitted.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Workers' Compensation, §§ 54-56, pp. 613-618

1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.12[1][c] (Matthew Bender)

1 Levy et al., California Torts, Ch. 10, Effect of Workers' Compensation Law, § 10.11[1][d] (Matthew Bender)

1 Herlick, California Workers' Compensation Law (6th Edition), Ch. 12, Tort Actions—Subrogation, § 12.20 (Matthew Bender)

51 California Forms of Pleading and Practice, Ch. 577, Workers' Compensation, §§ 577.314[3], 577.525 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

(New September 2003)