California Civil Jury Instructions (CACI)

3963. No Deduction for Workers' Compensation Benefits Paid

Do not consider whether or not [name of plaintiff] received workers' compensation benefits for [his/her] injuries. If you decide in favor of [name of plaintiff], you should determine the amount of your verdict according to my instructions concerning damages.

Directions for Use

This instruction is intended for use in conjunction with a special verdict form, in which case the judge can make any necessary deductions if double recovery is an issue. It may also be read in cases where there are no allegations regarding the employer's contributory negligence.

Sources and Authority

If the employer has not been negligent, the workers' compensation benefits do "not constitute an impermissible double recovery but rather a payment from a source wholly independent of the wrongdoer." (Curtis v. State of California ex rel. Department of Transportation (1982) 128 Cal.App.3d 668, 682 [180 Cal.Rptr. 843].)

" 'The average reasonably well-informed person who may be called to serve upon a jury knows that a workman injured in his employment receives compensation. It is a delusion to think that this aspect of the case can be kept from the minds of the jurors simply by not alluding to it in the course of the trial.' " (Berryman v. Bayshore Construction Co. (1962) 207 Cal.App.2d 331, 336 [24 Cal.Rptr. 380], internal citations omitted.)

"To prevent a double recovery, the court may instruct the jury to segregate types of damage as between the employee and employer, awarding to the employee only those tort damages not recoverable by the employer." (Demkowski v. Lee (1991) 233 Cal.App.3d 1251, 1259 [284 Cal.Rptr. 919], footnote omitted.)

"Alternatively, the jury may generally be instructed on the types of tort damages to which the employee may be entitled and then given a special verdict form that requires the jury to find whether the defendant was negligent, whether the negligence was the proximate cause of the mployee's injuries, what the employee's total tort damages are, without taking into account his or her receipt of workers' compensation benefits, and what the reasonable amount of benefits paid by the employer were. Thereafter, the court enters individual judgments on the special verdict for the amounts to which the employee and employer are entitled." (Demkowski, supra, 233 Cal.App.3d at p. 1259, footnote omitted.)

"Prior to Proposition 51, a negligent third party was allowed an offset for the workers' compensation benefits paid to the plaintiff. This prevented double recovery under the then-existing joint and several liability rule. Proposition 51, however, limited joint and several liability to plaintiff's economic damages." (Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187, 197 [78 Cal.Rptr.2d 861].)

"The Espinoza approach has provided an effective solution for pre-verdict settlements, and we believe that it is also the most suitable means of dealing with workers' compensation benefits." (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 37 [56 Cal.Rptr.2d 455].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Workers' Compensation, §§ 25-29, pp. 578-584

1 Levy et al., California Torts, Ch. 10, Effect of Workers' Compensation Law, § 10.10 (Matthew Bender)

51 California Forms of Pleading and Practice, Ch. 577, Workers' Compensation, § 577.319 (Matthew Bender)

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

(New September 2003)