CACI No. 2810. Coemployee’s Affirmative Defense - Injury Covered by Workers’ Compensation

Judicial Council of California Civil Jury Instructions (2023 edition)

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2810.Coemployee’s Affirmative Defense - Injury Covered by
Workers’ Compensation
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for any harm that [name of plaintiff] may have suffered
because [he/she/nonbinary pronoun] was [name of defendant]’s coemployee
and therefore can recover only under California’s Workers’
Compensation Act. To succeed, [name of defendant] must prove all of the
1. That [name of plaintiff] and [name of defendant] were [name of
employer]’s employees;
2. That [name of employer] [had workers’ compensation insurance
[covering [name of plaintiff] at the time of injury]/was self-insured
for workers’ compensation claims [at the time of [name of
plaintiff]’s injury]]; and
3. That [name of defendant] was acting in the scope of
[his/her/nonbinary pronoun] employment at the time [name of
plaintiff] claims [he/she/nonbinary pronoun] was harmed.
New September 2003; Revised October 2004, May 2020
Directions for Use
This instruction is intended for use if a coemployee is the defendant and that
coemployee claims that the case falls within the workers’ compensation exclusivity
rule. For instructions on scope of employment see instructions in the Vicarious
Liability series (CACI Nos. 3700-3726). Scope of employment in this instruction is
the same as in the context of respondeat superior. (Hendy v. Losse (1991) 54 Cal.3d
723, 740 [1 Cal.Rptr.2d 543, 819 P.2d 1].) See instructions in the Vicarious
Responsibility series regarding the definition of “scope of employment.”
Sources and Authority
Exclusive Remedy. Labor Code section 3601.
“Employee” Defined. Labor Code section 3351.
Presumption of Employment Status. Labor Code section 3357.
“CACI No. 2810, which the trial court gave to the jury, is intended for use when
a coemployee defendant asserts the exclusivity rule as a defense. It has three
elements: (1) the plaintiff and the coemployee were employees of the employer;
(2) the employer had a workers’ compensation insurance policy covering the
plaintiff at the time of injury; and (3) the coemployee was acting in the scope of
his or her employment at the time of injury.” (Lee v. West Kern Water Dist.
(2016) 5 Cal.App.5th 606, 633 [210 Cal.Rptr.3d 362].)
“Labor Code section 3601 affords coemployees the benefit of the exclusivity rule
only ‘[w]here the conditions of compensation set forth in Section 3600
concur . . . .’ Those conditions, as has been mentioned, include the requirement
of industrial causation.” (Lee, supra, 5 Cal.App.5th at p. 634, internal citation
“[A] coemployee’s conduct is within the scope of his or her employment if it
could be imputed to the employer under the doctrine of respondeat superior. If
the coemployee was not ‘engaged in any active service for the employer,’ the
coemployee was not acting within the scope of employment.” (Hendy, supra, 54
Cal.3d at p. 740, internal citation omitted.)
“[G]enerally speaking, a defendant in a civil action who claims to be one of that
class of persons protected from an action at law by the provisions of the
Workers’ Compensation Act bears the burden of pleading and proving, as an
affirmative defense to the action, the existence of the conditions of compensation
set forth in the statute which are necessary to its application.” (Doney v.
Tambouratgis (1979) 23 Cal.3d 91, 96 [151 Cal.Rptr. 347, 587 P.2d 1160].)
“In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1006 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 73, 74
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, 5:624
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), 12:192 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, 13:951 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:569, 15:632 (The Rutter
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions - Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)

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