OPINION

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					Filed 1/16/01
                       CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIFTH APPELLATE DISTRICT

KEITH MELTON,
                                                                       F018487
         Plaintiff and Respondent,
                                                             (Super. Ct. No. 400590-6)
                v.

INDUSTRIAL INDEMNITY COMPANY,                                        OPINION
         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Fresno County. Franklin P.
Jones, Judge.
         McCormick, Barstow, Sheppard, Wayte & Carruth and James P. Wagoner for
Defendant and Appellant.
         Georgeson and Belardinelli and Richard A. Belardinelli for Plaintiff and Respondent.
                                     I. INTRODUCTION
         Industrial Indemnity Company (Industrial) appeals from a judgment holding it liable
for insurance bad faith on the ground it mishandled a “courtesy defense” and refused to
indemnify its insured, Keith Melton. In the underlying action, Melton was found by the
Workers’ Compensation Appeals Board (WCAB or the Board) to have fired an injured




*       Under California Rules of Court, rules 976(b) and 976.1, only parts I, IIA, III, IIIA,
IIIB, IV, and V are certified for publication.
employee, Edward Martin, in violation of Labor Code 1 section 132a (section 132a or
simply 132a) because Martin expressed an intention to file a workers’ compensation claim.
       The duty of good faith and fair dealing assertedly arose under any one of several
theories advanced by Melton. He maintained his liability was covered, or was at least
potentially covered, under his workers’ compensation and employers’ liability policy with
Industrial. Alternatively, he argued Industrial had waived its coverage defenses, or was
estopped to assert them, because it provided the defense without a reservation of rights.
Finally, Melton contended the duty of good faith and fair dealing attached irrespective of
the policy’s application once Industrial undertook to provide a defense. The trial court
ruled there was no coverage, no potential for coverage, and no estoppel to deny coverage,
but it permitted the case to go to the jury on the theories of implied waiver and a duty
undertaken. The jury returned a verdict for Melton and awarded him compensatory and
punitive damages totalling $650,000.
       In the published portion of this decision, we will conclude Melton’s liability was
covered under the workers’ compensation portion of his policy notwithstanding the fact the
firing was an intentional act. We will hold in particular that, given the nature of the
workers’ compensation system in California, neither the language in the policy limiting
coverage to “accidents,” nor the general public policy against furnishing insurance for
willful acts, relieved Industrial of its responsibility to defend and indemnify Melton. We
will hold further that Industrial was estopped to deny coverage on the ground Melton fired
Martin after the policy expired.
       In the unpublished portion of the decision, we will conclude the evidence fails to
support the jury’s award of compensatory damages with respect to certain of the economic
losses Melton claimed to have suffered as a result of Industrial’s bad faith. We will reject


1      Unless otherwise noted, future statutory references are to the Labor Code.




                                               2.
Industrial’s objection to the jury’s punitive damages award, as well as its numerous other
contentions challenging the judgment on several additional grounds. Accordingly, we will
affirm the judgment of liability but vacate the award of compensatory damages and remand
the matter for a new trial on that issue alone unless Melton consents to a reduction of the
award.
                             II. FACTS AND PROCEEDINGS
                                        A. Overview
         This case began in April of 1984 when Edward Martin fell off a ladder while working
for Sierra Signs, a small sign company in Visalia owned by Keith Melton.2 A few months
later Martin suffered disabling back pains that he attributed to the fall, and that caused him
to miss several weeks of work. By the time Martin was able to return to his job, Melton had
replaced him with someone else.
         Martin subsequently filed an injury claim with Industrial, Melton’s workers’
compensation carrier. Melton disputed the claim, arguing Martin’s fall was not the cause of
his back problems, and Industrial denied the claim for this reason. Martin then filed an
“Application for Adjudication of Claim” with the WCAB. After a brief investigation,
Industrial offered to settle Martin’s claim for $4,200. With this offer still pending, the
matter was set for a hearing on August 27, 1985.
         On August 14, nearly a year after he was discharged and two weeks before the
hearing on the “normal issues” (issues involving injury and disability), Martin filed a
petition with the WCAB alleging Melton had fired him in violation of section 132a for
having made known his intention to file a workers’ compensation claim. Discrimination of
this sort, if proved, entitles a worker to recover additional compensation equal to one-half


2      We will refer to Keith Melton and Sierra Signs interchangeably in the remainder of
this opinion.




                                              3.
his or her injury award, as well as to job reinstatement and lost wages. In response to the
petition, Melton denied any discriminatory intent, instead asserting he had replaced Martin
because he was an undependable worker.
       Industrial’s position with regard to 132a petitions, as set out in its internal claims
manual, was that an employer’s liability for discriminatory acts was not covered by the
standard workers’ compensation policy. Nonetheless, the company customarily provided
the employer with a “courtesy defense” in 132a cases in conjunction with its defense of the
normal issues. Usually the two matters were resolved together; Industrial would agree to
pay a little more than it otherwise might to settle the normal issues, in exchange for the
employee’s agreement to dismiss the petition.
       In advance of providing a courtesy defense, Industrial’s internal manual directed its
claims department to send the employer a standardized “132a letter” setting out the
company’s no-coverage position but offering “as a service to you” to pay for an attorney
selected by the employer (usually from a list of two or three attorneys suggested in the
letter). In this instance however, Industrial neglected to send the 132a letter. Whether or
not Melton was made aware of Industrial’s position in some other way, and when, would
become the primary factual issues in this case.
       Up to this time, Melton and Industrial had been jointly represented on the normal
issues by Industrial’s Fresno staff counsel, Timothy Lickness. But Lickness was unable to
attend the August 27 hearing and so referred the defense to Richard Yrulegui, an attorney
with the firm of Emerson, Yrulegui and Igoa, who often handled workers’ compensation
cases for Industrial.3 Soon after he received Melton’s file, Yrulegui got a phone call from
Mark Deutinger, Martin’s attorney, accepting Industrial’s outstanding $4,200 settlement
offer. Accordingly, the matter was taken off calendar and, after some further negotiations,


3      Our future references to Mr. Yrulegui are meant to also include his law firm.




                                               4.
the normal issues were settled by way of a compromise and release approved by the
workers’ compensation judge (WCJ).
       In a departure from Industrial’s usual practice, the 132a was not resolved with the
normal issues. Nor did Lickness or Yrulegui consult with Melton about the compromise
and release, or discuss its future effect on his 132a liability (and possibly on his insurance
premiums). Moreover, the settlement left unresolved the question of whether Martin had
suffered, in workers’ compensation parlance, an injury “arising out of and in the course of
the employment” (AOE/COE). (See § 3600.) For all these reasons and more, the manner
in which the normal issues were handled would become important later on in the
controversy over the 132a.
       Two disputed telephone conversations during this same period, both allegedly made
to Melton on August 26, 1985, underlie Industrial’s claim he was aware from the outset of
the case that any 132a liability he might incur would not be covered under his policy. One
of the calls came from Valerie Souza, the Industrial claims representative assigned to
Melton’s file at the time, and the other came from Richard Yrulegui. Both Souza and
Yrulegui testified they explained to Melton, and he seemed to understand, that he would be
personally responsible for any 132a award. Melton, on the other hand, asserted he was not
told anything of the sort until more than two and a half years later.
       Although Yrulegui was aware of the discrimination claim at this point, Industrial had
retained him for the normal issues only. During these same two disputed telephone
conversations, Melton reportedly agreed to hire Yrulegui for the 132a as well. Yrulegui
asked Souza for written confirmation. But Souza was transferred to a different caseload the
same day and never followed up on the request. Nor did her replacement, who closed the
Melton file in October once settlement of the normal issues was complete. Yrulegui also
closed his file. As a result, several months went by during which no one represented
Melton on the 132a. He assumed, by his account, that it had been resolved along with the
injury claim.

                                               5.
       Industrial’s oversight became apparent in January of 1986 when Martin’s attorney,
Deutinger, contacted Yrulegui and Industrial to arrange for Melton’s deposition. With
Melton’s approval, or at least with his acquiescence, Yrulegui was then hired to defend the
132a claim. Just who Yrulegui was representing—Melton or Industrial, or both—was a
matter of considerable confusion during the remainder of the proceedings. There were
several reasons for this uncertainty: Industrial was named as a defendant in most of the
pleadings; Yrulegui often identified himself as Industrial’s representative in pleadings and
correspondence, and before the WCAB; he regularly shared information about the case with
Industrial, sometimes to the exclusion of Melton; and without consulting Melton, Yrulegui
made settlement offers to Martin on Industrial’s behalf.
       The situation grew even murkier late in 1986. In November, Yrulegui attended a
workers’ compensation seminar where he learned for the first time of a legal argument in
favor of coverage for an employer’s 132a liability. On this basis, Yrulegui recommended
to Industrial that it pay for Cumis counsel (San Diego Federal Credit Union v. Cumis Ins.
Society, Inc. (1984) 162 Cal.App.3d 358) to represent Melton on the coverage issue.
Industrial agreed. Yrulegui then met with Melton, explained there was a “potential coverage
dispute,” and gave him the names of two attorneys (both of whom ordinarily represented
applicants rather than employers). Melton selected John Mitchell. He was now
represented by Yrulegui with regard to his 132a liability, and by Mitchell on the matter of
coverage should he be found liable. Significantly, although coverage had once again
become an issue, Industrial still did not send Melton a 132a letter.
       Yrulegui also suggested to Industrial that it attempt to settle the 132a in lieu of
paying the additional cost of a Cumis attorney. Industrial agreed and authorized Yrulegui to
offer up to $6,000. Yrulegui made the offer in early December but Martin rejected it, first
demanding $8,000 and then $13,000. Yrulegui did not tell Melton at the time about these
negotiations, nor did he suggest to Melton that he contribute some of his own money
toward the settlement.

                                              6.
       Yrulegui did, however, have such a conversation with Melton some three months
later on March 6, 1987, the date of the 132a hearing. The parties’ positions remained the
same: Martin wanted $13,000 to settle the case but Industrial was willing to pay no more
than $6,000. Melton declined to come up with the difference because, he testified later, he
believed Industrial would pay any award. Sometime later that same day Martin raised his
demand to $23,000. Since he was working only sporadically, the value of Martin’s claim
was increasing with time as his lost wages at Sierra Signs continued to accrue.
       The 132a hearing was concerned only with Melton’s liability, i.e., whether Martin
had suffered a work-related injury and whether Melton had fired him for pursuing a
workers’ compensation claim. Although the issue of insurance coverage could have been
litigated as well, none of the parties chose to raise it. Consequently, given the subject of
the hearing, it was Yrulegui rather than Mitchell who prepared and presented Melton’s
defense. But, for what he described as tactical reasons, Yrulegui stated his appearance at
the hearing on behalf of Industrial.
       Like Melton, Mitchell testified it was his impression during this period that
Industrial would pay any 132a award. This was so, he believed, because Industrial had not
taken a formal coverage position (in the form of a 132a letter), because Industrial had made
settlement offers to Martin, and because Yrulegui had said several times he thought
Industrial would pay. Mitchell, in turn, conveyed his impression to Melton. Yrulegui, on
the other hand, denied telling Mitchell Industrial would or might pay the entire award, only
that it might contribute some money toward it. From the time he was hired, Mitchell had
little direct contact with Industrial but relied instead on Yrulegui to communicate with the
company.
       Soon after the 132a hearing, Mitchell wrote to Yrulegui asking that Industrial renew
its previous settlement offer. Yrulegui relayed the request to an Industrial claims
representative who told him not to renew the offer lest it provide “more argument Mitchell



                                              7.
will use to make us pay if [we] lose.” Yrulegui evidently complied with these instructions,
but he would later tell Mitchell he was continuing to discuss a settlement with Deutinger.
       The WCJ’s decision in June of 1987 found no 132a violation and ordered Martin’s
petition dismissed. But the decision was based on a narrow interpretation of the statute
later rejected by the WCAB. The Board granted Martin’s petition for reconsideration on
this ground and remanded the case. The reconsidered decision in December favored
Martin. The WCJ found that Martin had suffered an injury AOE/COE, and that Melton had
discharged him for making known his intention to file an injury claim. Melton (but not
Industrial) was ordered to pay Martin $2,100, i.e., one-half the compensation already paid
him on the normal issues, plus an amount yet to be determined for Martin’s back wages,
less any amounts he had earned since his discharge. In addition, Melton was directed to
reinstate Martin to his former job as a sign repairman.
       Melton did in fact reinstate Martin in January of 1988. But the question of who
would pay the monetary portion of the award, Melton or Industrial, remained in question.
Mitchell wrote to Yrulegui in February to say that Melton was willing to contribute to a
settlement but was facing bankruptcy. In March, the WCAB denied Melton’s petition for
reconsideration of the second 132a decision. A few days later, Mitchell made a formal
demand on Industrial for payment of the award. The demand went to Dennis Rossi, the
claims supervisor overseeing Melton’s file.
       On April 5, 1988, after referring the matter to the home office for review, Rossi
responded by sending Melton the equivalent of a 132a letter. Rossi stated Melton’s 132a
liability was not covered under his policy because the policy applied only to events
resulting in bodily injury, and because insurance companies are prohibited by law from
insuring losses caused by willful conduct. This letter, according to Melton, was the first
time Industrial told him he would be personally responsible for the 132a award. It was,
without dispute, the first time Industrial told him so in writing.



                                               8.
       A supplemental hearing followed in December to determine Martin’s lost wages.
The decision in March of 1989 initially indicated the 132a award was against Industrial, but
it was amended a few days later to identify Sierra Signs as the responsible party. It is not
clear how or why this change was made, and specifically whether Yrulegui had some hand in
it, but the possibility Yrulegui had intervened with the WCAB on Industrial’s behalf would
later be cited by Melton in an effort to show a conflict of interest. Based on the amended
hearing decision, Melton eventually borrowed money on his house and paid Martin a total
of $42,772.42.
       In the meantime, notwithstanding Industrial’s 132a letter, Mitchell continued to try
to convince Industrial to provide coverage or at least to pay a part of the 132a award in lieu
of defense costs. Industrial refused. Faced with the prospect of having to pay the entire
award, Melton contacted Attorney Richard Belardinelli to discuss a possible legal action
against Industrial for insurance bad faith.
       In February of 1989, Belardinelli sent Industrial a detailed 74-page letter, with
exhibits, challenging Industrial’s denial of coverage as set out in Rossi’s April 5, 1988,
letter. Belardinelli argued Industrial’s policy afforded coverage for 132a violations, or at
least could be interpreted reasonably to do so. Alternatively, he maintained Industrial had
waived its coverage defenses, or was estopped to assert them, because it had led Melton to
believe to his detriment that it would pay the 132a award. Finally, Belardinelli also claimed
Industrial was liable for the award because it had been a named defendant in the 132a action.
Notably, Belardinelli did not rely on the argument that had given rise two years earlier to
the “potential coverage dispute.”
       Industrial referred Belardinelli’s letter to Andre Hassid, an attorney in its home
office. Hassid wrote back to Belardinelli the next month disputing each of his arguments
and once again denying coverage. Hassid’s response, which represented Industrial’s final
coverage position, would itself become controversial as Melton later alleged it was based in
part on confidential information provided to Hassid by Yrulegui.

                                              9.
       On May 19, 1989, Melton initiated the present proceedings by filing a complaint
against Industrial and Yrulegui in which he asserted 12 causes of action: breach of contract
(against Industrial only), breach of the covenant of good faith and fair dealing (against
Industrial only), “waiver/estoppel,” “fraud/deceit,” negligent misrepresentation, violations
of California law, negligence, intentional and negligent infliction of emotional distress,
constructive fraud, breach of fiduciary duty, and violations of the Insurance Code.
       Melton alleged generally that Industrial was obligated to defend and indemnify him
with respect to the 132a either because his insurance policy afforded coverage or because
the doctrines of waiver and estoppel operated to negate the policy’s coverage defenses. On
this premise, he alleged Industrial breached its contractual obligations, as well as the
implied covenant of good faith and fair dealing, by mishandling his defense and refusing to
pay the discrimination award. In addition, he alleged that Yrulegui, and Industrial to the
extent Yrulegui was acting on its behalf, breached various other duties owed to him by
failing to represent him properly. Melton claimed he suffered physical injury, emotional
distress, and financial losses as a result of these acts and omissions.
       A 60-day trial began on September 24, 1991, and was initially taken up with
numerous in limine and other motions seeking generally to define and limit the issues
before the court and jury. The court’s rulings on these motions will be discussed below as
they relate to the specific issues raised on appeal. But some of them bear mentioning here
because they help to put the eventual outcome into some better perspective.
       Among other things, Industrial moved to have the court decide two questions of law:
whether Melton was collaterally estopped to relitigate the WCAB’s factual findings with
respect to his 132a liability, and whether Industrial’s workers’ compensation policy
afforded coverage for such liability. Industrial also asked the court to decide two other
issues it characterized as equitable: whether Industrial should be estopped to assert its
coverage defenses under the policy, and whether Industrial had impliedly waived these
defenses.

                                              10.
       In connection wi th the first issue, collateral estoppel, the court took judicial notice
of the entire WCAB file in the Martin case, but it denied the bulk of Industrial’s request to
take judicial notice of various facts purportedly established by the record. However, it did
take notice of the WCJ’s two express findings in the 132a action, namely that Martin had
suffered an injury arising out of and in the course of his employment by Sierra Signs, and
that Melton had discriminated against Martin by discharging him for having made known his
intention to file a claim based on the injury. The court ruled Melton was collaterally
estopped to contest these two findings. Accordingly, it instructed the jury at the outset of
the trial to accept them as true for all purposes.
       The practical effect of this ruling was that Melton was precluded from arguing he had
been provided with an inadequate defense insofar as Industrial and Yrulegui failed to fully
investigate the facts behind Martin’s injury and discrimination claims. The court granted
Industrial’s in limine motions to this effect. It was Melton’s position that a proper
investigation would have shown, just as he had claimed all along, that Martin was actually
injured in a fight or motorcycle accident, and that he was an undependable worker who was
replaced when he failed to return to work as promised. Alternatively, if a more thorough
investigation had disproved these claims (and if he had been made aware he would be
personally liable for a 132a award), Melton sought to argue he had lost the opportunity to
settle the 132a at an early stage of the proceedings when the amount of Martin’s accrued
back wages still was relatively small.
       Melton was eventually given the opportunity to make these arguments much later in
the trial when the court, on its own motion, reconsidered and modified its collateral
estoppel decision. The court ruled Melton was still precluded from relitigating his 132a
liability but he could attempt to show he would have prevailed on the 132a had he been
provided with a more effective defense. In keeping with its revised ruling, the court
instructed the jury it must accept as true only that Martin had been “adjudged” by the
WCAB to have suffered an industrial injury and to have been fired by Melton as a

                                              11.
consequence. The court also reversed its prior rulings on Industrial’s in limine motions
relating to the investigation of Martin’s claims.
       The second significant question addressed by the court was whether Industrial’s
workers’ compensation policy provided coverage for an employer’s 132a liability. The
court initially concluded the issue had a factual component and deferred a decision until the
evidentiary phase of the trial. The court was concerned particularly with whether Melton
could have violated section 132a negligently or accidentally. This question was effectively
resolved once the court took judicial notice of the WCAB’s finding that Melton discharged
Martin because Martin had made known his intention to file a workers’ compensation
claim. For this reason, the court revisited the coverage issue in connection with Industrial’s
motion for judgment on the pleadings, and concluded there was no coverage. It relied
primarily on a provision in the policy limiting its application to injuries “(1) by accident
occurring during the policy period, or (2) by disease .…” (Italics added.) It relied to a
lesser degree on a statutorily-declared public policy against insuring losses caused by
willful acts, and noted too that Martin was discharged after the policy expired. The court
later instructed the jury that Industrial’s policy did not cover Melton’s 132a liability for the
first two of these three reasons.
       Finally the court addressed the questions of estoppel and implied waiver. Given
their factual nature, it deferred a decision on both issues until all the evidence had been
presented. Then at the conclusion of the trial, the court ruled Industrial was not estopped to
assert its coverage defenses because, notwithstanding the lack of a 132a letter, Melton was
aware of Industrial’s coverage position and did not detrimentally rely on a belief Industrial
would pay the 132a award. More importantly for purposes of this appeal, the court
concluded these two estoppel findings did not necessarily resolve the related but distinct
issue of waiver, a legal rather than an equitable question the court therefore allowed to go to
the jury. The court likewise concluded its estoppel findings did not necessarily dispose of



                                              12.
several other causes of action that presumed Melton had been misled as to Industrial’s
coverage position.
       Nine of the original twelve causes of action survived. As instructed by the court, the
jury was allowed to find a breach of contract on the premise Industrial had impliedly waived
its coverage defenses (the “contract by waiver” theory). It could find a breach of the
covenant of good faith and fair dealing premised either on the contract by waiver theory or
on the theory that Industrial, once it undertook to defend Melton, had a duty to do so fairly
and in good faith irrespective of the application of the insurance policy. The court denied
Industrial’s motion for nonsuit with respect to Melton’s causes of action for
“fraud/deceit,” negligent misrepresentation, negligence, negligent infliction of emotional
distress, constructive fraud, and breach of fiduciary duty. The court granted the motion with
respect to intentional infliction of emotional distress. The two causes of action for
violations of California law had been dismissed earlier in the trial.
       The jury deliberated for approximately ten hours over three days. On January 7,
1992, by a vote of nine to three, it returned a general verdict against both Industrial and
Yrulegui, and awarded Melton compensatory damages in the amount of $630,000. In
response to special interrogatories, the jury indicated $380,000 of this amount was for
Melton’s attorney fees, recoverable as damages on account of Industrial’s breach of the
covenant of good faith and fair dealing. Also in response to the special interrogatories, the
jury found that Industrial’s (but not Yrulegui’s) conduct giving rise to its liability was
committed with malice, fraud, or oppression. The jury then awarded Melton an additional
$20,000 in punitive damages as against Industrial only. Thus, Yrulegui’s liability for the
award extended only to the $250,000 in compensatory damages, exclusive of the allocation
for Melton’s attorney fees.
       Before judgment was entered on the verdict, Yrulegui reached a settlement with
Melton and moved the court for a determination of good faith. The count granted the
motion over Industrial’s vigorous opposition and, after further hearing, set the value of the

                                               13.
settlement at $130,000 as an offset against Industrial’s liability. The verdict against
Yrulegui was then set aside. On June 24, 1992, judgment was entered in favor of Melton
and against Industrial for $520,000 plus costs. Industrial’s motions for judgment
notwithstanding the verdict and new trial were denied, whereupon it filed a timely notice of
appeal.
         [The portions of this opinion that follow (parts IIB - IIS) are deleted from
publication.]*
                                  B. Martin’s Injury Claim
         Sierra Signs is a small company in Visalia that makes, installs, and maintains all
types of signs. Keith Melton runs the business and his wife, Katherine, keeps the books.
The company also has one and sometimes two employees classified as sign repairmen.
During the period in question here, Sierra Signs was insured by Industrial under a
“STANDARD WORKERS’ COMPENSATION AND EMPLOYERS’ LIABILITY POLICY”
in effect from August 1, 1983, to August 1, 1984. It was insured thereafter by a different
company.
         In the fall of 1983, Melton hired Edward Martin as the second sign repairman.
About six months later, on April 24, 1984, Martin was working by himself cleaning a sign
mounted on a pole some 20 or more feet in the air. To reach the sign he climbed an
extension ladder mounted in the bed of a company truck. As he did, a gear slipped and the
upper extension slid back down the ladder, throwing him off. Martin landed on his right
side in the truck bed, bounced off, and fell three more feet to the ground. A bystander who
witnessed the fall offered to take Martin to the hospital, but Martin declined and went back
to work. He completed the job before returning to the shop about an hour later. There was
a cut on Martin’s right arm, and a few days later his right leg was bruised from hip to knee.


*   See footnote, ante, page 1.




                                               14.
       Back at the shop, Martin told Melton of the fall and asked about the procedure to see
a doctor. By Martin’s account, Melton was hostile and uncooperative; he ridiculed Martin
for being stupid, accused him of misusing the ladder, and said he deserved to fall. Unwilling
to pay for the visit himself, Martin did not go to a doctor.
       Martin was sore for about two weeks after the accident but continued to work and
eventually felt better. Then in late July, fully three months after he fell, Martin woke up one
day with such severe back pain he was unable to get out of bed. He phoned Melton to say he
would not be coming to work. The pain persisted and Martin eventually went to see a
chiropractor, Dr. Steven Wong, on August 3. Dr. Wong attributed Martin’s back pain to his
fall from the ladder, and urged Martin to seek workers’ compensation benefits. Martin
went to Sierra Signs with his mother the same day to get the name of Melton’s insurance
carrier. Again Melton reportedly was angry and accusatory, but gave Martin the name of his
insurance broker, Lloyd Ellis. Ellis, in turn, referred Martin to Industrial.
       Dr. Wong estimated Martin would not be able to return to unrestricted work until
Monday, August 20, and Martin passed this information on to Melton. Martin went back on
that date to see Dr. Wong, who did in fact release him for work. By then it was midday, so
Martin waited until the next morning to go to the shop. Melton was not there when he
arrived. But Vic Durham, the other sign repairman, indicated to Martin that Melton was
upset and intended to fire him for pursuing a workers’ compensation claim. When Melton
arrived, he told Martin he had been replaced because he was an unreliable worker.
       Melton later would testify he fired Martin because he had failed to show up for work
as promised on August 20, and because he had missed a lot of work in the past. Melton
would also accuse Martin of misusing company credit cards, pilfering supplies, drinking on
the job, and “chewing some kind of mushroom.” As for Martin’s injury, Melton claimed to
have heard reports Martin had been hit in the back with a two-by-four in a fight, and had also
been injured in a motorcycle accident, within the period between his fall from the ladder
and the onset of his back pains. In fact, according to Melton, Martin admitted to him his

                                              15.
back injury was not work-related and said the workers’ compensation claim was all Dr.
Wong’s idea. Martin denied having suffered any other injury to his back after the ladder
incident.
       On August 28, 1984, a week after Martin was fired, Industrial’s Fresno claims office
received a “DOCTOR’S FIRST REPORT OF OCCUPATIONAL INJURY OR ILLNESS”
(dated “8/5/84”) from Dr. Wong regarding Martin’s back injury. The Martin claim was
assigned on September 6 to Valerie Souza, a new claims representative who had just
completed a 60-day training period. In accord with Industrial’s internal procedures, Souza
recorded her activities in the case on a “CASE MANAGEMENT ANALYSIS/PLANNING
FORM” or “C-MAP.”
       Dr. Wong’s report erroneously indicated Martin was injured on August 3, 1984,
three days after Industrial’s policy expired. For this reason, Souza initially rejected
Martin’s claim and referred him instead to the subsequent carrier. Once Souza realized her
mistake, she opened a claim file and undertook an investigation into the circumstances of
Martin’s injury. In the process she talked to Melton, who told her of his conviction
Martin’s injuries were not job-related. On November 14, 1994, Souza wrote to Martin
denying his claim because “‘there is no evidence that your current complaints are related to
any injury suffered while working for Sierra Signs.’”
       Martin then retained attorney Anthony Ross who, on December 18, 1984, filed an
“APPLICATION FOR ADJUDICATION OF CLAIM” with the WCAB on Martin’s behalf.4




4       The application alleged Martin had been injured on March 27, 1984, and some
subsequent documents in this case (including Melton’s briefs on appeal) have continued to
cite this as the date of Martin’s fall from the ladder. However, the application was later
amended by order of the WCJ to allege Martin was actually injured on April 24, 1984. And
that was eventually found to be the date of his injury.




                                              16.
Souza answered the following month for Industrial and denied most aspects of Martin’s
claim, including his assertion he had suffered an injury AOE/COE.
       Souza referred Industrial’s defense of Martin’s injury claim, i.e., the “normal
issues,” to Timothy Lickness, the lone staff counsel in the Fresno office. After taking
Martin’s deposition, Lickness gave Souza the following assessment of the case: “If the
applicant [Martin] has a witness … who will testify that he saw the applicant fall and if your
insured [Melton] comes across as poorly as he does in his statements then I think that we
are not going to be successful in defending this claim.” Lickness repeated his concern
about Melton’s demeanor a few days later after talking to him on the phone: “I fear that
your insured is going to be difficult to control if we have to call him as a witness.” For
these reasons Lickness, with Souza’s authorization, offered to settle the case for $4,200 at
a rating conference in May of 1985. Martin evidently was agreeable to this sum but did not
formally accept the offer, so the matter was set for a hearing on August 27, 1985. Around
the same time, Attorney Mark Deutinger took over responsibility for Martin’s case from
Anthony Ross. In his trial testimony, Deutinger recalled that by the time he entered the
case an agreement had already been reached between Lickness and Ross to settle the normal
issues for $4,200 “subject to our filing a 132a.”
                            C. Martin’s Discrimination Claim
       On August 14, 1985, Deutinger filed with the WCAB a “PETITION FOR
DISCRIMINATION AGAINST AND WRONGFUL DISCHARGE OF EMPLOYEE
PURSUANT TO LABOR CODE SECTION 132(a),” naming as defendants both Sierra Signs
and Industrial Indemnity.5 The petition alleged inter alia:


5       Industrial’s witnesses were careful at trial to distinguish the pleading practices
customarily used in workers’ compensation proceedings from those followed in civil
liability trials. In a civil action against a policyholder for a covered claim, only the
policyholder’s name is listed on the pleadings; although the insurer accepts coverage and



                                              17.
                “At all times herein, applicant’s employer, through its employees,
       agent, officers and representatives, discouraged applicant from filing a
       workers’ compensation claim for the injuries sustained by the applicant on or
       about March 27, 1984, and further indicated that should the applicant proceed
       to file a workers’ compensation claim or claim any benefits under the
       Workers’ Compensation Act of the State of California, that he would be
       discharged from his job.”
This language (referring to “agent … and representatives”) would become significant in the
present action insofar as it could have been interpreted at the time to allege that Industrial
was implicated directly in Martin’s discharge, and thus to explain why Industrial was named
as a defendant throughout the 132a proceedings.
       Section 132a, as it read in 1984, provided in part:

              “It is the declared policy of this state that there should not be
       discrimination against workers who are injured in the course and scope of
       their employment.

               “(1) Any employer who discharges, or threatens to discharge, or in
       any manner discriminates against any employee because he or she has filed or
       made known his or her intention to file an application for adjudication with
       the appeals board, or because the employee has received a rating, award, or
       settlement, is guilty of a misdemeanor and the employee’s compensation
       shall be increased by one-half, but in no event more than ten thousand dollars
       ($10,000), together with costs and expenses not in excess of two hundred
       fifty dollars ($250). Any such employee shall also be entitled to
       reinstatement and reimbursement for lost wages and work benefits caused by
       the acts of the employer.




defends the action, its name is omitted to avoid the prejudice that might result if the jury
were made aware an award would be paid by an insurance company. Much the opposite is
true in workers’ compensation cases. There both the insurer and policyholder are initially
named as defendants. Both their names remain on the pleadings if a coverage dispute exists
between them. However if the insurer accepts coverage, the policyholder’s name often is
then removed from the mailing list, if not from the caption, and the matter is litigated
entirely between the insurer and the employee with little or no involvement by the
policyholder. (See §§ 3755-3759.) Such was true here with Martin’s injury claim.




                                              18.
               “(2) Any insurer carrier who advises, directs, or threatens an insured
       under penalty of cancellation or a raise in premium or for any other reason, to
       discharge an employee because the latter has filed or made known his or her
       intention to file an application with the appeals board, or because the
       employee has received a rating, award, or settlement, is guilty of a
       misdemeanor and subject to the increased compensation and costs provided
       by paragraph (1).”
Martin’s 132a petition sought all forms of relief allowed by the statute, i.e., additional
compensation, costs and expenses, reinstatement, lost wages, and attorney fees.
       Industrial’s position with respect to handling 132a petitions was set out in its
“WORKERS COMPENSATION CLAIM TECHNICAL MANUAL.” Comparing an
employer’s liability for a 132a violation to that for serious and willful misconduct (see
§ 4553), the claim manual stated in part:

           “2. Discrimination Cases

              “Sanctions provided under Section 132a are likewise punitive in
              nature, and public policy dictates that the employer pay the penalties
              as a deterrent to further discrimination. Clearly, there is no
              indemnification under the policy. (See Insuring Agreement IV.)

              “The policy does not promise a defense. However, it is not
              specifically forbidden. Industrial Indemnity will, as a service to the
              employer, pay for the normal and reasonable costs to defend a 132a
              case. These expenses will be paid as allocated expenses and charged
              to the workers compensation claim associated with the 132a
              allegation.

       “C. Instructions for Handling

           “1. Investigations

              “Because of the possibility of an inadvertent waiver of company
              rights, no investigation should be commenced into an insured’s
              alleged discrimination prior to a decision on the defense of the action.
              Should a claim be asserted directly against Industrial Indemnity, an
              internal investigation should be commenced without delay.

           “2. Reporting

              “......................................................................................................................


                                                                19.
           “3. Selection of Attorney

              “a. For the present, staff counsel should not be used in the defense of
                  132a litigation. Industrial Indemnity will provide a panel of
                  qualified attorneys from the approved outside counsel list, from
                  which the insured may select counsel to defend the 132a action. If
                  the insured insists on a firm not included on the panel, the
                  company will negotiate and establish fees with that firm in advance
                  of any hearing or trial. Since this procedure parallels the
                  procedure for providing a defense in serious and willful
                  misconduct cases, similar letters will be used to notify the insured
                  of the panel (see Exhibits 15A and 16B [sic] in this subject …).”
       The form letters attached as exhibits 15A and 15B set out Industrial’s no-coverage
position, explained that an insured’s “exposure” in a 132a case was not covered under the
policy, offered to pay reasonable and normal legal expenses in defense of the action, and
provided the names and addresses of two or three outside attorneys.6




6       Throughout the trial, Industrial sought to characterize the form 132a letter as a
denial of coverage rather than as a “reservation of rights.” As discussed more fully below,
the existence of a coverage question does not necessarily excuse an insurer from the duty
to defend its insured against a third party lawsuit. In such situations, an insurer furnishing a
defense may reserve its right to refuse to indemnify the insured against a subsequent
judgment, or its right to withdraw the defense prior to judgment, on the ground the claim is
not covered under the policy. An insurer who provides a defense without a reservation of
rights may thereby waive, or be estopped to assert, its coverage defenses. (See generally,
Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 1999) ¶ 7:709
et seq., p. 7B-58.1)
        Industrial’s form 132a letter denied both the duty to indemnify and the duty to
defend, but offered to pay for the defense “as a service to you.” Thus, even though the 132a
letter was not, strictly speaking, a reservation of rights, its purpose was essentially the
same: to avoid giving the insured the impression by defending the claim that the insurer was
accepting coverage. (See Croskey et al., Cal. Practice Guide: Insurance Litigation, supra,
¶ 7:712, p. 7B-59.) Moreover, once the “potential coverage dispute” arose in the fall of
1986, the situation was effectively transformed into the more typical one calling for a
reservation of rights.




                                              20.
       Copies of the 132a petition were served on Lickness and Souza, who were both still
assigned to Martin’s injury claim then set for a hearing two weeks later on August 27.
Souza noted receipt of the petition in a C-MAP entry: “Ap atty filing a 132A - await def
atty [Lickness] reaction - review w/ supervisor.” 7 Souza had had little or no experience with
132a petitions in the year she had been working for Industrial. She did not consult the
claims manual nor send Melton a 132a letter.
       Lickness, too, had never before handled a discrimination claim and was unfamiliar
with the claim manual’s provisions regarding 132a letters. He understood, however, that he
could not represent Melton on the 132a, so he asked Souza to contact Melton and advise
him to obtain independent counsel. On August 16, Souza wrote a note to Rossi saying:
“Tim [Lickness] is bugging me about this file re: 132 A question.…We go to full trial in 2



      Notably, the form 132a letter did not rely on the policy’s “accident” limitation,
which would eventually become the principal basis upon which Industrial would deny
coverage. Instead, it stated:

       “Your policy of insurance with this company, under the insuring agreements,
       reads:

       “‘IV. Application of Policy
       “‘This policy applies only to injury (1) by accident—, or (2) by disease—’

       “Thus, we do not provide insurance coverage under your policy for events
       which do not result in bodily injury. Furthermore, we are prevented by law
       from insuring liability arising from intentional conduct. Insurance Code
       Section 533 provides: [¶] .…”
7       The 132a petition alleged Martin had been fired from Sierra Signs “on or about
August 20, 1984.” Melton’s policy with Industrial had expired on July 31, 1984, and he
was insured thereafter by a different company. Industrial did not conduct any investigation
into Martin’s 132a claim, and apparently no one there noticed that the alleged 132a
violation had occurred outside the policy period. At least no one attached any significance
to this fact because, as discussed below, it was never cited by Industrial as a reason for
denying coverage.




                                             21.
wks. (in all other issues) … Please advise!” Rossi wrote back: “The answer is that Tim has
been substituted out & Rich Yrulegui will be handling the case.” Rossi later conceded his
response was at best unclear as to which part of the case Yrulegui would be handling.
       In fact, Yrulegui had been assigned the normal issues only. At about the same time
the 132a petition was filed, Lickness realized he had a calendar conflict and would not be
able to attend the August 27 hearing on the normal issues. So he referred that portion of
Melton’s defense to Yrulegui.8
       It was not uncommon for Industrial to refer cases to Yrulegui. By Rossi’s estimate,
some 60 percent of Industrial’s referrals to outside counsel during this period went to
Yrulegui. Yrulegui acknowledged Industrial was a “significant client” comprising 10 to 15
percent of his legal practice.
       Lickness, Rossi, and Yrulegui signed a substitution of attorneys form on August 20.
The next day Lickness sent his file to Yrulegui’s office with a note that said: “Hearing on
normal issues set for 8-27-85 at 9:00. 132a recently filed. Employer has agreed to appear
and testify re AOE/COE. Employer is a loser as is the issue of AOE/COE.” By this “loser”
comment, Lickness testified he meant to alert Yrulegui that “we’re going to lose, we got a
witness we can’t control.” Yrulegui called Melton on August 23 to confirm his appearance
at the hearing. Melton once again was adamant Martin had not been injured on the job.
       August 26, 1985, the day before the hearing on the normal issues, is perhaps the
single most significant date in this case. The precise sequence of events on that day is
somewhat difficult to discern from the record. But it appears everything began with a phone
call to Yrulegui from Mark Deutinger, Martin’s attorney, accepting Industrial’s $4,200



8       It was Industrial’s usual practice when referring a file to outside counsel to send a
transmittal letter outlining the issues in the case. No one at Industrial sent Yrulegui such a
letter with the Melton file.




                                              22.
settlement offer. After confirming with Souza that the offer was still open, Yrulegui (or his
secretary) phoned Deutinger, Melton, and the WCJ to say a tentative settlement agreement
had been reached. The matter was then taken off calendar while the parties worked out
additional details of the agreement.
       Deutinger’s acceptance of the settlement offer was limited to the normal issues.
Thus, according to Yrulegui, the subject of the still-pending 132a claim came up during his
August 26 conversation with Melton. Melton reportedly said he wanted Yrulegui to
represent him on that claim too. Yrulegui was willing to do so but wanted a written
confirmation first. He explained this to Melton, and to Souza. Souza, according to
Yrulegui’s notes, responded “she’ll advise re 132A representation.” In her C-MAP entry
for the same day, Souza wrote in part: “Recommend Rich for the 132A - await agent & insd
response - agent called to go-ahead - refering [sic].” As it turned out, Souza did not refer
the 132a defense to Yrulegui because she was transferred the same day to a different
caseload. Her successor failed to notice that the 132a was still pending and so closed the
entire file two months later after the settlement of the normal issues was approved.
Without a referral letter, Yrulegui also closed his file.
       Several consequences flowed from these events: Martin’s injury claim was settled
without any significant input from Melton; the question whether Martin had suffered an
industrial injury was left unresolved; there was little or no opportunity to settle the 132a
along with the normal issues; and Melton went for several months without representation on
the 132a. The facts surrounding these developments will be discussed in greater detail
shortly. But first it is important to more closely examine the August 26 conversations, or
alleged conversations, between Souza and Melton and between Yrulegui and Melton. Both
Souza and Yrulegui testified they explained to Melton that he would be personally
responsible for paying a 132a award. The court relied in large part on their testimony in
ruling Melton was aware of Industrial’s no-coverage position from the outset of the 132a



                                              23.
proceeding. It rejected Melton’s insistence he knew nothing of Industrial’s position until
he received Rossi’s April 5, 1988, letter some two and a half years later.
                D. Souza’s August 26, 1985, Conversation with Melton
       Souza’s entire C-MAP entry for August 26 reads as follows:

       “Def atty now R. Yrelgui [sic] - he indicates Clmt willing to settle at 4200
       orig. offerred [sic]

              “1. Rich to handle - increase reserves accordingly.

              “2. Recommended Rich for the 132A - await agent & insd response -
       agent called to go-ahead - refering [sic]”
       According to Souza, the last portion of this entry reflects a telephone conversation
she had with Melton (although the entry mentions only Melton’s insurance agent) in which
she verbally gave him essentially the same information he would have received from a 132a
letter. She testified she could recall her conversations with Melton “quite clearly” because
he took an unusual amount of interest in the case and had very strong opinions about
Martin.9 Souza said she called Melton on or near August 26 to tell him about the
settlement of Martin’s injury claim. She continued:

               “And what we discussed was the fact that the normal issues had
       resolved. That left the only remaining issue of the 132a petition. Mr. Melton
       was aware of the 132a petition at that time. He evinced no surprise when we
       moved onto that topic. In fact, he may have even introduced it. At that point I
       told him the sole remaining issue will be are [sic] the 132a petition which—
       for which you will need to choice [sic] an attorney to represent you. You
       should carefully consider any attorney selection that you make because you
       are financially liable for any penalty that can or—be assessed in this matter. I
       mean it was very clear that that was an out-of-pocket expense that he would
       bear which is why I felt it was important that he think about a choice of
       attorney. And I did routinely say, you know, we provide you a list of attorneys
       and I rattled them off – [¶] … [¶] … And Mr. Melton asked me if I had anyone


9      Souza was testifying in October of 1991 about a conversation in August of 1985.




                                             24.
       that I wrote [sic] specifically recommend. And Mr. Yrulegui came to mind
       because he does do that kind of work.

              “......................................................................................................................

              “His response generally was that, you know, he wanted to consult with
       his agent, you know, before making any decision along these lines and that I
       would be hearing from him back. You know, which was perfectly acceptable.
       He—he did not understand that there was liability for him personally on a
       personal and financial level.…”
       Asked to explain this last remark, Souza said Melton did not seem to appreciate the
possibility he might lose in the 132a proceeding.

               “I think that Mr. Melton did indeed grasp what I was telling him about
       the the financial liabilities and the, you know, out of his pocket expense
       potential. If I made any reference to him … in terms of him having no
       liability, it was only because he was very secure in his position that he had no
       exposure. That he did not—he did not discharge this employee because of his
       injury.”
Despite this uncertainty, Souza did not follow up her conversation with Melton with a 132a
letter because she did not feel it would have served any purpose at that point.
       Melton testified he could not recall having had any such conversation with Souza in
August of 1985, and maintained he knew nothing about the 132a until several months later
when he was subpoenaed to appear for his deposition. Melton’s insurance broker, Ellis,
also had no recollection of a conversation with Souza on August 26.




                                                                25.
             E. Yrulegui’s August 26, 1985, Conversation with Melton10
       Donna Campbell, Yrulegui’s secretary, called Sierra Signs on August 26 to tell
Melton he need not appear at the hearing the following day because Martin’s injury claim
had been settled. Melton was out but called back. According to Campbell’s note to
Yrulegui describing her conversation with Melton, “ … I told him everything - not to show
up - & he says he has a s&w [serious and willful] now - I told him you would call him.”
Yrulegui’s handwritten notation on the same piece of paper indicates he did call Melton the
same day “re 132H [sic] - I’ll be hired.” It was during this last conversation on August 26
that Yrulegui said he first told Melton he would be personally responsible for a 132a award.
       Yrulegui was aware of the 132a at that point, but had only skimmed the petition
without giving it much thought. He did not represent Melton with regard to the 132a and so
did not feel it was his duty to explain its ramifications. And he assumed Industrial had
already sent Melton a 132a letter. Therefore, Yrulegui had what he described as a “pretty
minimal” and “offhand” discussion with Melton about the 132a, in which he avoided any
use of the term “coverage.” Yrulegui testified:

              “I would not have used the word coverage with Mr. Melton. It’s a legal
       term. It has certain specific meaning to an attorney. But to a layman it really
       is—means nothing. What I would have very superficially covered with him at
       that point is that the 132a existed. He was aware of that. He was aware, I
       think—my impression is he was aware it was separate from the normal issues


10     Although Lickness briefly represented Melton (and Industrial) on the normal issues,
most of Melton’s bad faith claim against Industrial was focused on Yrulegui’s subsequent
handling of both the normal issues and the 132a. Moreover, as noted, there was
considerable confusion about whose interest Yrulegui was actually representing on these
two claims. Therefore, one of the important threshold issues in this case was whether
Industrial should be held liable for Yrulegui’s acts and omissions, i.e., whether Yrulegui was
acting as Industrial’s agent or as an independent contractor. This question was put to the
jury, which evidently concluded an ostensible agency existed between them. (See Tomerlin
v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 643-644.)




                                             26.
       that were being resolved. He was told by me, I’m sure, that it was something
       that he needed separate representation on and that he essentially would pay
       anything that was awarded. That it was out of his pocket.

               “The whole conversation probably took less than a couple of minutes.
       It was—it was no question and answer period. It was not him questioning me
       on what it meant or me advising him on that point. He told me, I guess my
       note says, that I’ll be hired. I don’t know precisely whether he told me that he
       had talked to Valerie [Souza] by that point or not. I don’t remember her name
       coming up. But he did indicate to me that he wanted to hire me, and I’m sure
       that I told him as reflected in subsequent letters that he needed to send me a
       letter to confirm that before I would officially be his attorney.”
       Melton recalled that Campbell told him on August 26 not to appear for the next
day’s hearing because “the whole thing had been taken care of and that it had been settled
for half.” He understood this to mean all Martin’s claims had been resolved. Melton
denied having had a separate conversation with Yrulegui later that day during which the 132a
claim was discussed.
       On September 5, 1985, Yrulegui wrote to Souza discussing the pending resolution of
the normal issues. In the letter he referred to his conversation with Melton on August 26.
A settlement of Martin’s injury claim, Yrulegui told Souza, would leave only two “loose
ends” in the case: a lien by the Employment Development Department against Martin’s
recovery for his injury, and the 132a petition. In anticipation of being retained to defend
the 132a, Yrulegui assessed the claim as follows:

       In discussing potential exposure on the 132(a), if in fact Mr. Melton makes a
       credible witness, and is properly controlled at trial, it does not appear as
       though there’s a great deal of potential exposure.… As I understand my
       conversation with you and some other people, I understand that the employer
       is somewhat volatile as far as this man [Martin] is concerned and [I] will
       certainly have to do a considerable amount of preparation of Mr. Melton
       before he testifies. I think once he realizes that the money is going to come
       out of his pocket and not ours, [it] will certainly calm him down and make
       him [a] more presentable witness.” (Italics added.)




                                             27.
       Questioned at trial about the highlighted portion of this letter, Yrulegui disputed the
implication Melton had not yet been told a 132a award would come out of his pocket.
Yrulegui testified:

              “Well, what that sentence means essentially is that very briefly I had
       explained that it was coming out of his pocket. Mr. Melton I don’t think at
       that point thought he was going to lose this issue. I don’t know. You’ll have
       to ask him what he thought. But my impression is that it isn’t fully registered
       with him that he was going to lose the case and if he lost it, he would have to
       pay. But he was told that if he lost it, he would pay. How—how much of that
       he understood, I wasn’t sure.”
       Notably, Yrulegui did not send Melton a copy of his September 5 letter. This was
so, Yrulegui explained, because he did not represent Melton on the 132a at that point, and
because the letter merely said in writing what Yrulegui had already told Melton directly.
Yrulegui dismissed as poor drafting his use of the word “ours” to refer to responsibility for
a 132a award.
                            F. The Compromise and Release
       As noted, Deutinger called Yrulegui on August 26, 1985, to accept Industrial’s
outstanding $4,200 settlement offer. As things stood then, Yrulegui had undertaken the
defense of the normal issues about a week earlier, and the 132a petition was nearly two
weeks old. No one represented Melton with respect to the 132a, and no one would for
several more months. Valerie Souza had just left the Melton file and would be replaced by
Tina Rauch (then known as Tina Andrews).
       It was Industrial’s practice when a 132a petition was filed in connection with an
injury claim to attempt to resolve them both at the same time. Rossi, Souza, Rauch and
others were careful to say, however, that Industrial did not “settle” 132a claims. Rather it
would offer to pay an additional amount toward the injury claim, equal to the nuisance value
of the 132a, in exchange for the petitioner’s agreement to dismiss the 132a. This approach
generally worked in the typical case where the two claims were filed concurrently and the
132a was intended mainly as “leverage.” But since the circumstances here did not fit this


                                             28.
pattern, neither experience nor policy provided Industrial’s claims representatives with any
clear guidance on how to proceed. Consequently, Industrial departed from its customary
practice in two significant ways: it did not attempt to resolve the 132a with the normal
issues, and it offered to pay money directly toward the 132a itself long after the normal
issues had been settled.
       Yrulegui’s handwritten notes of his August 26 telephone conve rsation with
Deutinger, as best Yrulegui could decipher them at trial, said: “settlement at rating pretrial
agreed on 4200 for C & R.… Is petition for 132a … so settlement would not include.…
[w]hole thing would [or could] settle.” Yrulegui could not recall what he meant by the last
sentence. But he said Deutinger made it clear to him soon afterward that Martin was not
interested in settling the 132a. Deutinger testified he had as yet conducted no discovery on
the discrimination claim and was not in a position to advise Martin regarding its possible
settlement.
       In any event, the possibility of settling the 132a with the normal issues received
little or no attention. According to Yrulegui, “… I wasn’t representing anybody on the 132a
at that point and I didn’t pursue it.” “… [I]t was not something that I was focusing on at that
point. I was sent the normal issues. That was not part of the normal issues directly.”
       The same day he talked to Deutinger, Yrulegui sent him a copy of a proposed
compromise and release. Deutinger sent it back a few days later with two changes: he
added language specifically exempting Martin’s 132a claim from the agreement, and he
changed the wording in another sentence to say that Martin had been “disabled” from work
rather than “laid off” from work in July of 1984. Yrulegui accepted these changes without
further discussion, and forwarded the signed document to the WCAB for approval.11


11     Notwithstanding Melton’s arguments to the contrary, Industrial’s acquiescence to
these changes had no significant effect on this case. The 132a was a separate claim and
would not have been covered by the compromise and release with or without the additional



                                              29.
       One other change in the settlement agreement would also become controversial.
The proposed compromise and release Yrulegui sent to the WCAB requested a Thomas
finding, after Thomas v. Sports Chalet, Inc. (1977) 42 Cal.Comp.Cases 625. Pursuant to
Thomas, the Board will not approve a settlement relieving an employer of liability for
vocational rehabilitation benefits unless it finds “there is a good faith issue which if
resolved against the applicant would defeat the applicant’s claim for all benefits,” as where
a legitimate issue of injury AOE/COE exists. (Id. at p. 627.) The proposed compromise
and release declared there to be such an issue in this case.12 But the WCJ wrote to the



language. (See Morehouse v. Workers’ Comp. Appeals Bd. (1984) 154 Cal.App.3d 323,
331.) And there is no dispute Martin was disabled when he stopped working in July. The
real issue for purposes of the injury claim was whether Martin’s disability was caused by
his fall from the ladder in April, i.e., whether he had suffered an injury AOE/COE.
However, the distinction between laid off and disabled might have been significant for
purposes of Martin’s claim for unemployment benefits.
      We will discuss below Industrial’s contention the trial court erred by permitting
Melton to present expert testimony criticizing Industrial for accepting what was, in effect,
inconsequential changes to the compromise and release.
12     It stated in paragraph 9, “Reason for Compromise”:

       “Serious question of Injury AOE/COE. Applicant alleges injury in March of
       1984, but continued working for the insured until the end of July 1984.
       Defendants maintain that there was no report of work injury, nor was there
       any indication of an alleged injury until the applicant was disabled from work
       in July of 1984.
       “Defendants further contend that witnesses could be presented by defendants
       that would indicate the possibility of injury not related to the employment.
       “Based upon the above circumstances, defendants would request a Thomas
       finding on the issue of rehabilitation. Defendants contend that there are
       factual issues which if presented to the Appeals Board in conjunction with the
       employer’s testimony, could in fact result in a complete denial of benefits to
       applicant. On this basis, defendants would request a Thomas finding on the
       question of rehabilitation.”




                                              30.
parties the following month to say that a Thomas finding was not warranted “[o]n the record
so far submitted.” The WCJ proposed to approve the compromise and release without the
finding unless good cause to the contrary could be shown within 10 days. Yrulegui referred
the matter to Tina Rauch, who told him to accept the settlement without a Thomas finding.
As a consequence, Martin would still be potentially eligible for rehabilitation benefits in
the future, subject to a five-year statute of limitations.13 But more important from
Melton’s point of view, Industrial elected to forego this opportunity to present additional
evidence to show Martin had not been injured on the job. The WCJ approved the
compromise and release, without a Thomas finding, in October of 1985.
       Lickness, Souza, and Yrulegui were aware that the amount paid in settlement of the
injury claim would affect the size of any award Melton might later be required to pay on the
132a. They also knew the settlement could cause Melton’s insurance premiums to
increase. Nonetheless, they made no effort to include him in the settlement discussions
because they believed Industrial had an absolute right under the policy to settle the injury
claim as it saw fit.14



13      Industrial went to some effort at trial to argue the lack of a Thomas finding caused
Melton no harm because Martin did not claim rehabilitation benefits within the five-year
limitations period. This argument misses the point. First, Industrial not Melton would have
been liable for the cost of any rehabilitation benefits (although the payment of benefits
might have affected Melton’s insurance premiums). Second, as will be discussed below,
the real harm asserted by Melton in connection with settlement of the normal issues was
the lost opportunity to resolve the 132a at the same time.
14     The policy provided in part:

       “As respects the insurance afforded by the other terms of this policy, the
       company shall:
       “(a) defend any proceeding against the insured seeking such benefits and any
            suit against the insured alleging such injury and seeking damages on
            account thereof, even if such proceeding or suit is groundless, false or



                                             31.
       Melton was upset when he learned Industrial was going to settle Martin’s injury
claim. He did not believe Martin’s back problems were job-related, and he wanted the
opportunity to prove as much at the August 27 hearing. Yrulegui, on the other hand, felt
Melton was unlikely to prevail on the issue.
       In summary, Melton’s chief complaint about Industrial’s handling of the normal
issues was that it deprived him of the opportunity to resolve the 132a at an early stage of the
proceedings, without the additional stress and expense he would incur over the next several
years. He maintained neither Lickness nor Yrulegui had in fact explained to him that he was
likely to lose on the issue of Martin’s injury AOE/COE; no one looked after his interests in
the settlement of the normal issues or told him the 132a was still pending; and no one




            fraudulent; but the company may make such investigation, negotiation
            and settlement of any claim or suit as it deems expedient; …”
        However, the right of an insurer to investigate, negotiate, and settle claims under
such a provision is not without limitation. The duty of good faith requires an insurer to give
some consideration to the interests of its insured that may be injured by the exercise of the
right. (Security Officers Service, Inc. v. State Compensation Ins. Fund (1993) 17
Cal.App.4th 887, 895-896; Western Polymer Technology, Inc. v. Reliance Ins. Co. (1995)
32 Cal.App.4th 14, 24-25.)

       “… [T]he alleged mishandling of claims by an insurer occasioned by the
       hiring of inadequate legal and medical advisors and insufficient defense
       investigation and resolution of pending claims implicates the insurance
       policy’s implied covenant of good faith and fair dealing, which ‘imposes
       limits on the insurer’s latitude in discharging its contractual right or duty to
       defend, investigate and settle claims.’ [Citation.]” (Lance Camper
       Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194,
       201-202.)
In a workers’ compensation context in particular, the insurer must investigate, defend, and
settle claims with due regard for the effect its actions may have on the insured’s premiums.
(Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 921-925; Security Officers
Service, Inc. v. State Compensation Ins. Fund, supra, 17 Cal.App.4th at p. 898.)




                                               32.
advised him he would be personally responsible for paying a 132a award. If he had known
these things, he would have tried to the settle the 132a with the normal issues.

               “THE WITNESS [Melton]: Well, looking the way I see it now, if
       somebody had set me down with a piece of paper and told me all the bad
       points and the good points and the ups and the downs and how it could go and
       how it might go or would go, we would have settled it at the 132a hearing as
       far as I’m concerned. I mean the first one.

              “Q. Which—what do you mean the first one?

              “A. I mean I was—I asked to come to the—to the hearing where they
       had [the] underlying case and I would have found out then that there was a
       132a which I did not know until April—later into ‘86. But if I had been there,
       they would have probably brought it up; right?

              “Q. And you would have addressed the issue you mean at the time the
       underlying case was settled by Mr. Yrulegui?

              “A. That’s the way I look at it, yes.”
                            G. Yrulegui is Hired for the 132a
       When the compromise and release was approved by the WCJ in October of 1985,
Rauch paid the settlement and then closed the Melton file. She testified she would not have
done so had she known there was a 132a claim still pending. She acknowledged she had not
reviewed the file very thoroughly up until then, nor had she discussed it with Souza. For this
same reason apparently, Rauch failed to follow up on Yrulegui’s request for written
authorization to represent Melton on the 132a. Therefore Yrulegui also closed his file in
October.
       In January of 1986, Deutinger contacted Rauch, Yrulegui, and Melton to schedule
Melton’s deposition in the 132a action. Once she realized the 132a had not been resolved,
Rauch addressed a C-MAP entry to her supervisor Rossi asking: “Do we owe defense if
only issue is 132A? Please advise.” Rossi could not recall how he responded, but he




                                             33.
testified it was Industrial’s practice at the time to furnish a defense in such
circumstances.15
       When Yrulegui received the deposition notice, he wrote to Deutinger to say he did
not represent Melton on the 132a. He sent a copy of the letter to Industrial with a note
explaining he had never received written authorization. At this point Rauch realized “there
was an obvious problem” and she phoned Lloyd Ellis, Melton’s insurance broker. On
February 10, 1986, Rauch sent an authorization letter to Yrulegui in which she wrote in
part: “I have been in contact with Lloyd Ellis, the agent, who has confirmed the authority
extended by Insured Keith Milton [sic] to represent their interests.”
       Ellis recalled his conversation with Rauch somewhat differently. He understood
Rauch to say Industrial had already hired Yrulegui to handle the 132a, and that Melton could
choose to have Yrulegui represent his interests as well (at Industrial’s expense) or he could
hire a different attorney (at his own expense). Ellis, in turn, relayed this information to
Melton, who agreed to accept Yrulegui. Similarly, Melton recalled he simply went along
with the lawyer provided by Industrial. And Melton testified the deposition notice was his
first indication there was a 132a claim pending against him.
       Rauch also discovered upon reviewing the file that Souza had not sent Melton a 132a
letter. She did not send him one herself, however, because she concluded he was already
aware the 132a was not covered. She based this conclusion on Souza’s August 26 C-MAP
entry, on Yrulegui’s September 5 letter, and on a phone call she had with Yrulegui in
connection with the upcoming deposition during which he told her about his August 26
conversation with Melton.




15     The record reveals that a defense had never been provided previously, independent of
the underlying injury claim.




                                              34.
       The deposition was held on February 18, 1985. Yrulegui met with Melton briefly
beforehand to go over his testimony. During this meeting, Yrulegui did not tell Melton in
so many words there was no “coverage” for his 132a liability. But Yrulegui testified that,
in an effort to impress upon Melton the need to maintain his composure, he warned Melton
it would cost him money if he lost. “… [M]y handle, so to speak, in getting him under
control to testify in the deposition was to point out to him that if he lost it or blew his
temper that it could have a financial impact on him. He understood that very clearly.”
Melton recalled the general conversation, but not any discussion about coverage.
       Soon after the deposition, Yrulegui sent a letter to Industrial in which he wrote:
“Mr. Melton made an excellent witness in our behalf and I think adequately demonstrated
that the reasons for applicant’s termination from Sierra Signs had literally nothing to do
with the alleged workers’ compensation claim.” (Italics added.) The same day, Yrulegui
also wrote to Melton requesting Martin’s earnings records. He began the letter by saying:
“We represent you and your Workers’ Compensation insurance carrier in the above entitled
matter.” Yrulegui acknowledged this language may have caused Melton to believe Industrial
was a party to the 132a action; he characterized the sentence as a “clerical mistake.”
       In March of 1986, Yrulegui filed an answer to the 132a petition on behalf of Sierra
Signs. No answer was ever filed on Industrial’s behalf.
       Tina Rauch was transferred to a different caseload in April of 1986 and replaced by
Rose Schwarer (then known as Rose Taylor). Schwarer reopened the Melton file and
reestablished a reserve.16 Her C-MAP entry on April 7+



16     An insurer transacting business in California is required by law to establish and
maintain reserves. (Ins. Code, § 923.5.) Loss reserves, which are the type involved here,
“represent the amount anticipated to be sufficient to pay all obligations for which the
insurer may be responsible under the policy with respect to a particular claim. That amount
necessarily includes expenses that are likely to be incurred in connection with the



                                               35.
stated in part: “Case needs to be re-opened for filing of 132a.…[¶] We will provide a
Def.” Although it was Schwarer’s practice to review new files, she could not recall if she
reviewed Melton’s file or, if so, whether she noticed it did not contain a 132a letter.
       The remainder of 1986 was taken up with discovery in preparation for the 132a
hearing, which was initially scheduled for October 30. Yrulegui filed several “status
reports” with Industrial during this period in which he described his activities with respect
to Martin’s discrimination claim. Some of the reports, he later acknowledged, may have
given the impression he was defending Industrial as well as Melton. For example, on April
21 Yrulegui wrote to Rossi and Melton to report on the deposition of Victor Durham
(Martin’s coworker at Sierra Signs). Yrulegui noted he had been at Durham’s deposition
“representing your interests.” He later conceded this was a “poorly drawn sentence.” He
ended the same letter by saying he would schedule Martin’s deposition “[a]bsent objection
from you.” This was “not the best phraseology,” he admitted at trial, inasmuch as it
suggested he was seeking Industrial’s approval to act in the case.
       In May, Deutinger wrote to Yrulegui regarding Martin’s upcoming deposition.
Yrulegui made a handwritten note on the letter to forward a copy “To client.” He (or his
office) subsequently sent a copy to Industrial, but not to Melton.




settlement or adjustment of the claim, as well as the legal fees and other costs required to
defend the insured.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1613.)
        The fact Industrial reestablished reserves is some indication it believed it had a duty
to defend the 132a. (See Samson v. Transamerica Ins. Co. (1981) 30 Cal.3d 220, 240.)
However, Rossi testified during his deposition that the case was reopened and the reserves
established solely to prevent the file from being destroyed, and not to adjust the 132a. He
seemingly contradicted himself at trial when he testified: “There’s no way in the world it
[the closed file] would have been destroyed” as long as there continued to be activity in the
case.




                                              36.
       And in July, Yrulegui wrote to Rossi (but not to Melton) reporting on Martin’s
deposition. He said he had been present at the deposition representing the interests of
Sierra Signs. Then, after recounting Martin’s testimony, Yrulegui went on to discuss the
potential financial “exposure” in the case, and expressed his opinion that “we are in
excellent shape.” Yrulegui could not explain at trial why he would have discussed potential
exposure with Rossi since, in Yrulegui’s mind, Industrial was not a party to the 132a, he did
not represent the company, and “[t]hey really wouldn’t have much interest in it, truthfully.”
He testified, however, that he had explained to Melton several times that any 132a award
would come out of his pocket, and Melton was “very much aware” of this by the time of
Martin’s deposition. Yrulegui concluded the letter: “I have little doubt that the case will go
to trial simply because I don’t believe that the applicant would accept a nuisance value
settlement and I doubt seriously if the employer would pay even that amount.”
       There were several other instances like these during the 132a proceedings when
Yrulegui consulted or shared information with Industrial about various aspects of the case,
sometimes to the exclusion of Melton. In addition, the pleadings usually identified
Industrial as a defendant in the action, and Yrulegui announced his appearance at the 132a
hearing on Industrial’s behalf (for reasons discussed below). Yrulegui’s actions in this
regard were the subject of much argument at trial insofar as they tended to establish not
only his own liability but, more importantly for purposes of this appeal, Industrial’s liability
as well. First, they arguably showed Yrulegui was acting as Industrial’s agent so that
Industrial might be found liable to Melton based on Yrulegui’s conduct. Melton’s principal
allegation, generally stated, was that Industrial, by way of Yrulegui, led him to believe it
would cover his 132a liability. The question of agency, as noted, was a factual one for the
jury to decide. Second, Yrulegui’s actions gave at least the appearance that Industrial was a
party to the 132a. This, in turn, could have been interpreted to mean either that Industrial
was itself liable along with Melton for discriminating against Martin, or alternatively, and
more plausibly, that Industrial had accepted coverage for Melton’s 132a liability. The court

                                              37.
would later instruct the jury the evidence had been admitted for this second purpose only.17
       Yrulegui testified that, unlike the injury claim where he represented both Melton and
Industrial, he represented only Melton on the 132a; that Industrial was not a party and had no
interest in the case beyond paying for the defense. He explained he provided Industrial with
status reports simply to justify his billing charges. As for those instances where he referred
to Industrial as a defendant, or as his client, he generally attributed the mistake to habits he
developed in the course of representing Industrial on numerous other normal issues cases
where this was true.
                           H. Mitchell Hired as Cumis Counsel
       The 132a hearing originally scheduled for October of 1986 was rescheduled for
December 5. As previously noted, Yrulegui attended a workers’ compensation seminar in
November where he learned for the first time of a legal argument in support of coverage for
an employer’s 132a liability.18 Yrulegui met with Rossi and Schwarer on December 3, told


17      The court gave the following instruction: “Evidence as to whether or not Industrial
was a party to the 132a discrimination action has been admitted only for the limited purpose
of the issue of whether Keith Melton could reasonably believe that Industrial Indemnity was
going to be responsible for any award that might be made in the 132a discrimination action.
Such evidence has not been introduced to show that there was some error on the part of the
Workers’ Compensation Appeals Board.”
        The court denied Industrial’s motion in limine to preclude Melton from referring to
Industrial as a party to the 132a proceeding, and declined to take judicial notice of the
“fact” Industrial was not a party. Industrial challenges these rulings on appeal, and we will
discuss them below.
18      The previous version of section 132a provided that an employer who violated the
statute was guilty of a misdemeanor and subject to the provisions of section 4553. (Stats.
1978, ch. 1250, § 3, p. 4065.) Under section 4553, an employee injured by an employer’s
serious and willful misconduct was entitled to additional compensation equal in amount to
one-half the benefits otherwise recoverable for his or her injury. However, the employer’s
liability for this additional compensation was expressly made noninsurable by Insurance
Code section 11661, which provided:




                                               38.
them about the seminar, and advised them of the need to provide Melton with Cumis
counsel. Neither Rossi nor Schwarer had ever worked on a case involving Cumis counsel,
and neither fully understood why one was necessary in this case. Nonetheless, Rossi
accepted Yrulegui’s advice and authorized a second attorney to represent Melton.
       Yrulegui testified his advice to Rossi, in retrospect, was based on a “pretty generous
interpretation” of the Cumis decision. He explained:

               “After the seminar I understood there was an argument to be made that
       there could be coverage. I wanted—I tried to look at it actually from Mr.
       Melton’s point of view. I wanted him to have someone advising him on that
       issue that he had total confidence in. I had handled the normal issues, albeit
       briefly, and had represented both Mr. Melton and Industrial Indemnity in that
       sense. Mr. Melton had seen me reporting to Industrial Indemnity as to what
       facts were progressing through the case. I just wanted him to be clear in his
       mind and sure in his mind that whoever was telling him about this coverage
       dispute that he could have total confidence in them. And I wasn’t convinced
       that I would be the right person for that.



               “An insurer shall not insure against the liability of the employer for
       the additional compensation recoverable for serious and willful misconduct
       of the employer or his agent. An insurer may, however, provide insurance
       against the expense of defending any suit for serious and willful misconduct
       against an employer or his agent.”
Thus through its indirect reference to section 4553, Insurance Code section 11661 also
arguably applied to an employer’s liability for the additional compensation due under
section 132a (if not for the other elements of a 132a award).
       Section 132a was amended in 1982 to the version (quoted above) in effect when
Martin was discharged. The amended version provided for additional compensation for
prohibited acts of discrimination without any reference to section 4553. Therefore, the
coverage argument went, without the shared reference to serious and willful misconduct,
Insurance Code section 11661 no longer applied to section 132a. It would then be
permissible under this view for an insurer to indemnify an employer against its liability for
a 132a violation. And thus the liability arguably would be covered absent language in the
policy, or some other statutory provision, excluding it. Yrulegui characterized this as a
“pretty skinny legal argument.”




                                             39.
              “And in addition I didn’t think I was the right person to be arguing with
       Industrial Indemnity over whether there was coverage or not. I just wanted
       someone with a fresh approach with no influence or no involvement in this
       case up to that point.”
       Also on December 3, shortly after he talked to Rossi and Schwarer, Yrulegui drove
to Visalia and met with Melton. According to Melton, Yrulegui told him: “Well, there was
a potential coverage dispute, and that I—I don’t understand attorney stuff. I just was
instructed that I should have to get another attorney because of a conflict.” Yrulegui sent
Melton a letter three weeks later, on December 23, in which he described their meeting this
way:

       “… I explained to you that I had recently been to a seminar, and that it was my
       opinion after attending this seminar that there may in fact be a legal basis for
       your claim against Industrial Indemnity Company to pick up any benefits that
       may be awarded subsequent to trial in this matter. I explained to you at that
       time because of some discrepancies in the Labor Code and recent case
       decisions, that there is some chance that benefits that are awarded to a
       successful applicant in a 132(a) action, may in fact be covered by your
       workers’ compensation policy with Industrial Indemnity Company.

       “On the basis of this understanding, I advised you that it would be in your best
       interest to contact a separate attorney of your own choosing to represent you
       in a potential coverage dispute[19] with Industrial Indemnity Company


19     Industrial stressed at trial that Yrulegui’s letter to Melton referred five times to a
“potential coverage dispute.” It argued the existence of a dispute supposes the parties have
taken opposing positions, and therefore the letter should have alerted Melton to the fact that
Industrial was denying coverage. However, Yrulegui did not purport to speak for Industrial
with regard to coverage. Moreover, as his letter went on to explain, there would be no
actual controversy unless and until Martin prevailed on the 132a.
       “Obviously, if we take this matter to trial and win, this coverage dispute
       would not be relevant since there would be no exposure on your part for any
       benefits under applicant’s 132(a) action. If, however, Mr. Martin were to win
       his action either partially or totally, I now assume that Mr. Mitchell will
       represent your interests in any potential coverage dispute with Industrial
       Indemnity.”




                                             40.
       regarding potential coverage for any 132(a) benefits that could be awarded in
       this particular matter.…”20
Yrulegui gave Melton the names of two local attorneys: John Mitchell and Gary Spain, both
of whom normally represented applicants rather than employers. Melton contacted and
hired Mitchell the same day.
       About this same time, the 132a hearing then set for December 5 was rescheduled
once again, this time for March 6, 1987.
       Between the time he was retained in December and the 132a hearing in March,
Mitchell had several conversations with Yrulegui about Melton’s case. According to
Yrulegui, he explained the coverage argument to Mitchell “very thoroughly.” Mitchell, on
the other hand, testified he and Yrulegui did not discuss the basis for the coverage dispute in
any depth, but that he (Mitchell) understood the dispute to relate to the lack of a provision
in the insurance policy specifically excluding coverage for a 132a. Further, by Mitchell’s
account, Yrulegui expressed the opinion around this time that Industrial would pay any 132a
award. Mitchell understood Yrulegui was not stating Industrial’s coverage position, and in
fact believed Industrial had not yet taken a formal position. That is, Mitchell knew


Finally, Yrulegui’s letter referred not to a coverage dispute but to a potential coverage
dispute, which suggests Industrial had yet to take a formal position on the matter.
20      Yrulegui sent a letter to Rossi and Schwarer the same day enclosing a copy of this
letter to Melton. In his letter to Rossi and Schwarer he wrote:

       “… As you and I discussed face to face at the December 3rd meeting, it is my
       estimation that the potential value in this case should be no more than
       $20,000 to $23,000, depending upon evaluation and computations of
       applicant’s claim for back wages. Our exposure as far as the penalty aspect
       of the 132(a) action would not exceed $2,100 .…” (Italics added.)
There was no similar discussion of “exposure” in Yrulegui’s letter to Melton, nor did
Yrulegui send Melton a copy of his letter to Rossi and Schwarer. This was so, Yrulegui
testified, because he had given Melton essentially the same information at their meeting.
He characterized his reference to “our exposure” as “inartfully drawn.”




                                             41.
Industrial had not sent Melton a 132a letter, and he had been told by Melton no one had
explained to him his 132a liability would not be covered.
       Mitchell recalled having a face-to-face meeting with Melton sometime soon after
being retained. Melton seemed already to understand he was charged with discriminating
against Martin, that there would be a financial penalty imposed if the charge were proved,
and that he would be personally responsible for paying the penalty if it were not covered
under his policy with Industrial. Their discussion focused primarily on this latter issue of
coverage. Mitchell explained Industrial might or might not cover the 132a, and Melton
“understood that somewhere along the lines [sic] he may have to write out a check.”
However, Melton “was of the impression after meeting with Mr. Yrulegui in December …
that there would probably be coverage.” Nonetheless, Mitchell advised Melton the
coverage issue might need to be litigated.
       Rossi assumed primary responsibility for the Martin case once the coverage issue
arose, although Schwarer remained on the file and made occasional C-MAP entries. Rossi
was under the impression then that Melton believed the 132a was covered. Nevertheless, he
did not send Melton a 132a letter because he felt sure that Yrulegui and Mitchell knew the
132a was not covered (and presumably had conveyed this information to Melton).
                    I. Yrulegui Engages in Settlement Negotiations
       On November 26, 1986, shortly after he returned from the seminar, Yrulegui
contacted Deutinger to solicit a settlement demand from Martin. Deutinger called Yrulegui
back on December 1. Yrulegui’s notes of their conversation reflect that Deutinger told
him: “‘Back wages 21,000. Total value 23,000, approximately. Demand $8,000.’”
Yrulegui called Industrial the same day and talked either to Rossi or Schwarer. He
described the seminar, explained Industrial was “on the hook for Cumis counsel,” and
suggested it offer some money to resolve the case in lieu of additional attorney fees. Rossi
and Schwarer authorized Yrulegui to offer up to $6,000. Yrulegui offered $4,000 on



                                             42.
December 1 and $6,000 on December 2. On December 3, Deutinger left a message with
Yrulegui’s office saying Martin would accept no less than $13,000.
       This was the state of the settlement negotiations when Yrulegui met with Melton in
Visalia on December 3. Yrulegui, by his account, told Melton only that Industrial had
offered Martin money to settle the claim and was awaiting his response. Yrulegui did not
tell Melton his potential exposure at that point was $23,000; he did not seek Melton’s
authorization to settle the 132a; and he did not suggest to Melton that he contribute some of
his own money toward a settlement. The reasons he did not, as he explained at trial, were
because Martin’s demand at that point was too uncertain, and because Melton had said
previously he was unable and unwilling to pay Martin anything. In addition, according to
Yrulegui, Melton would not have agreed to reinstate Martin. However, Deutinger testified
Martin’s $13,000 demand did not include reinstatement.
       Yrulegui had little further direct contact with Melton regarding settlement once
Mitchell was hired. At his deposition, Yrulegui expressed some uncertainty about his
continuing role in the case:

              “‘Well, at this point I didn’t know where I was in the case. My state of
       mind at this point is Mitchell is representing Melton without question and I
       didn’t quite know who I was representing. I was sort of in a twilight zone,
       quite honestly, because now Mitchell was Cumis counsel. Industrial
       Indemnity because of the coverage dispute was not in my mind active in the
       case, not officially at that—that point. But they were certainly active if there
       was a coverage issue.

              “‘I was not comfortable saying I represented Industrial Indemnity on
       the coverage issue. That would have been a conflict. I did not really know
       what I was doing there. My contact with Mr. Melton pretty much lapsed at
       that point. I dealt with him through Mr. Mitchell. I still communicated with
       Industrial Indemnity, but I really didn’t know what my role in this case was
       from that time forward, quite honestly.’”
       Mitchell, on the other hand, considered himself merely an “observer” at the time.
That is, he understood he had been retained to represent Melton only with respect to



                                             43.
coverage, but coverage would become an issue only if Melton lost on the 132a claim.
Since the general expectation was that Melton would not lose the 132a, there was little for
Mitchell to do. He took no part in the preparation for the 132a hearing, but left that entirely
to Yrulegui.
       The subject of settlement came up again briefly during a meeting between Melton,
Yrulegui, and Mitchell just prior to the 132a hearing in March of 1987. According to
Melton, it was at this meeting where he learned for the first time that Industrial and Martin
had been engaged in settlement discussions. Yrulegui asked Melton if he would be willing
to put up some of his own money to help resolve the 132a. Melton declined because he did
not have any money to contribute, because he believed he would win, and because he had
been advised by Mitchell that Industrial would “take care of it,” meaning it would pay the
132a award if he lost. Mitchell, in turn, based this advice on what Yrulegui had told him. In
addition, in Melton’s mind the fact Industrial was offering its own money to settle the claim
was a further indication it would pay any 132a award. No one at the meeting explained to
Melton that he might be personally liable for the award, or that he could be required to
reinstate Martin.
       Later that same morning, but still before the 132a hearing, Martin increased his
demand from $13,000 to $23,000.
                                   J. The 132a Hearing
       The 132a hearing was held as scheduled on March 6, 1987. As noted, Yrulegui
announced his appearance at the hearing on behalf of Industrial only; Mitchell appeared on
behalf of Melton. Yrulegui explained later this was a tactical decision he made with
Mitchell so both of them could cross-examine Martin’s witnesses. However Mitchell
could not recall having made this arrangement, and was surprised by Yrulegui’s
announcement. Up until the hearing, Mitchell believed Yrulegui was representing only
Melton; afterward he assumed Yrulegui was acting in a dual capacity as the attorney for both



                                             44.
Industrial and Melton. In any event, Yrulegui handled the bulk of the defense and Mitchell
played only a minor role at the hearing.
       The hearing was concerned primarily with the reason Melton fired Martin, i.e.,
whether, as alleged in the 132a petition, it was based on Martin’s apparent intention to file a
workers’ compensation claim or whether, as Melton asserted, it was based instead on
Martin’s poor work habits. Two other issues are also worth mentioning in connection with
the 132a hearing: whether Martin had suffered an injury AOE/COE, and whether Melton’s
potential 132a liability was covered under his policy.
       The first issue, Melton’s reason for firing Martin, turned in large measure on the
testimony of Victor Durham, Martin’s coworker at Sierra Signs. According to Martin, he
encountered Durham at Sierra Signs a few days before he was fired and Durham told him
something to the effect of “‘Gee, I feel sorry for you because Keith is going to fire you
because he’s afraid you’re going to make a Workers’ Comp claim.’” Melton denied having
said anything of the sort to Durham. Durham testified at the 132a hearing that he could not
remember if Melton told him this or not. Durham also testified that Martin was a sloppy
worker, made crude remarks to women, humiliated Durham about his religion, often missed
work, and liked to fight.
       As explained above, the question of whether Martin had suffered an injury AOE/COE
was left unresolved by the compromise and release of the injury claim, although
significantly Industrial had failed to make a showing in that regard sufficient to justify a
Thomas finding. The issue therefore became a part of the 132a hearing on the premise an
industrial injury is a prerequisite for a valid discrimination claim.21 The evidence presented


21       Several witnesses at trial expressed differing opinions about whether a worker can
still recover on a discrimination claim even if his or her injury claim has been found to be
groundless. Although the 132a hearing proceeded on the theory the worker could not
recover, the trial court instructed the jury to the contrary:




                                              45.
at the hearing on this subject was brief and consisted largely of the medical reports and
Martin’s testimony about his fall from the ladder. However, Martin also reportedly
acknowledged he had been in a fight after the fall during which he was hit with a two-by-
four.
        Although Yrulegui and Mitchell were aware the question of insurance coverage,
including the issues of waiver and estoppel, could be litigated before the WCAB, neither
raised it at the 132a hearing. Yrulegui explained it was not his job to do so because he did
not represent either Industrial or Melton with respect to coverage, notwithstanding the fact
he stated his appearance at the hearing on Industrial’s behalf. When Yrulegui appeared for
Industrial without raising the coverage question, Mitchell took that as an indication
Industrial did not intend to contest coverage, and so thought to himself “we’ve got it made.”
On the other hand, Mitchell did not look to Yrulegui as Industrial’s spokesman on coverage.
        Mitchell himself did not raise the coverage issue because he did not believe it was
necessary at that point; Industrial had not yet taken a coverage position, it was offering to
settle the case, and Mitchell had been told by Yrulegui that Industrial would probably pay an
award. Under these circumstances, Mitchell saw no tactical reason to bring up an issue that
might eliminate Industrial’s “deep pocket.”
        At the conclusion of the 132a hearing, both Yrulegui and Mitchell thought it had
gone very well for Melton, and told him so.
        Martin put on no evidence at the hearing implicating Industrial in his discharge. For
this reason, Mitchell concluded that Industrial was not a party to the 132a even though it had



       “In order to make out a violation of Labor Code Section 132a, an employee such as
James Edward Martin need not show that he did in fact suffer an injury arising out of and in
the course of his employment. Rather, liability for discrimination under Labor Code 132a
can exist even if the injured worker did not actually suffer an injury arising out of and in the
course and scope of his employment.”




                                              46.
been and would continue to be named as a defendant in various documents related to the
case.
        On March 11, Yrulegui sent a letter to Industrial describing the 132a hearing. In it
he wrote: “The applicant was present and represented by his attorney, Mr. Mark Deutinger,
Mr. John Mitchell was present as personal counsel for Mr. Keith Melton, the employer,
and the undersigned was present representing your interests.” (Italics added.) Yrulegui
would later characterize the italicized portion as a “clerical error” because, in his mind,
Industrial was not a party to the 132a and had no interest in the hearing, and because he in
fact did not represent Industrial. Yrulegui did not send a copy of the letter to Melton or
Mitchell.
                           K. Industrial Ends Settlement Offers
        On March 17, 1987, Mitchell wrote to Yrulegui requesting that Industrial renew its
settlement offer to Martin. Yrulegui forwarded the letter to Industrial where it was routed
to Schwarer. Schwarer was unaware settlement offers had already been made, but it was her
practice in any event not to settle 132a cases. So on April 16, she phoned Yrulegui and told
him not to make an offer. Schwarer’s C-MAP entry for that date read: “P/C TO RICH.
DISCUSSED CASE. TO NO [sic] MAKE OFFER, RATHER WAIT RESULTS OF
HEARING. HE AGREES.” By “he agrees,” Schwarer meant only that Yrulegui agreed to
abide by her decision, not that he agreed with the decision itself. Yrulegui gave the entry a
similar interpretation.
        This same conversation was also the subject of a handwritten note in Yrulegui’s file.
Referring to Schwarer, the note said: “doesn’t want to make offer per Mitchell, realizing
this if done more argument Mitchell will use to make us pay if lose.” Schwarer’s call was
the first indication Yrulegui had received that Industrial was no longer willing to pay money
to resolve the 132a, and it was contrary to what he had been saying to Mitchell.
Nonetheless Yrulegui did not convey this new information to Mitchell. To the contrary,
Yrulegui would write Mitchell some six months later: “I have contacted Mr. Deutinger

                                              47.
several times to try to settle this case and his client simply will not consider a settlement at
any amount.” Deutinger could not recall having had any settlement discussions with
Yrulegui after the 132a hearing, and none were reflected in Yrulegui’s billing records.
Yrulegui, on the other hand, testified he was still prepared to discuss settlement but
Deutinger could not get Martin to commit to a figure.
       According to Mitchell, had he been aware of Schwarer’s decision it would have made
a “substantial difference” in the way he handled Melton’s case, i.e., he would have
attempted immediately to settle the case on Melton’s behalf.

       “… the way I interpreted that message [in Yrulegui’s file] is that Industrial
       had then taken a position and had advised Mr. Yrulegui what their position
       was. Don’t make any settlement offers. Okay. If I had of known that, the
       expectancy that a settlement could be achieved would not have been there.
       We would have known what the position was as of that point in time. And so
       the best thing to, it would be to mitigate damages as rapidly as possible on
       behalf of Mr. Melton.”
Mitchell also expressed the belief, for reasons that will appear, that the opportunity for
settlement was much better right after the 132a hearing than it would be a year later when
Industrial finally sent Melton a no-coverage letter.
                                    L. The 132a Decision
       The WCJ issued his “FINDINGS AND ORDER” on June 18, 1987. He found “The
employee had not filed or made known his intention to file an application for adjudication
with the appeals board prior to his termination on August 21, 1987,” 22 and he therefore
ordered that Martin’s 132a petition be dismissed. Thus, the decision relied on a strict
interpretation of section 132a requiring proof an applicant had filed or expressed the



22     The findings and order erroneously referenced “1987” instead of the correct year of
termination, 1984. So far as can be determined, no one apprised the WCJ of the error and
the error was corrected upon reconsideration by the WCJ.




                                              48.
intention to file an application for adjudication of claim with the WCAB, as opposed simply
to an injury claim filed with the employer or the employer’s insurance carrier.
       Deutinger filed a petition for reconsideration with the WCAB challenging this
interpretation. Mitchell thereafter wrote to Yrulegui expressing his opinion the petition
probably would be granted. Mitchell also told Yrulegui of a recent encounter with the WCJ
during which the WCJ said that aside from his interpretation of the statute, he felt the facts
were sufficient to uphold Martin’s petition on the merits. For these reasons, Mitchell
suggested to Yrulegui that “your client” reopen settlement negotiations before the WCAB
ruled on the reconsideration petition. Yrulegui forwarded a copy of Mitchell’s letter “To
client,” meaning Industrial. The letter was routed to Schwarer, who by then had closed the
Martin file again. Schwarer did not respond to Mitchell’s suggestion. Yrulegui
subsequently filed an answer to Martin’s petition on behalf of both Melton and Industrial.
       In September of 1987, the WCAB granted Martin’s petition for reconsideration,
rescinded the WCJ’s decision, and returned the case for further proceedings. The WCJ
issued new “FINDINGS AND AWARD” on December 22. He found, inter alia:

              “1. EDWARD JAMES MARTIN did at Visalia, California, on April
       24, 1984, sustain an injury to his right lower extremity, left arm and back,
       arising out of and occurring in the course of his employment as a sign
       repairman by SIERRA SIGNS.

              “2. KEITH MELTON discriminated against EDWARD JAMES
       MARTIN by discharging him on August 21, 1984 for having made known his
       intention to file a claim for compensation in connection with this injury.”
       In his “OPINION ON DECISION,” the WCJ explained the second finding in this
way:

       “I am persuaded by the testimony of applicant and his mother that the
       employer, Keith Melton, vehemently questioned and resented this claim and
       was uncooperative in its furtherance.

       “………………………………………………………………………………



                                              49.
       “From the fact that [Melton’s] ‘Desk Diary’ … shows that applicant’s
       replacement, Tom Moline, worked eight hours on August 20, 1984 (the day
       applicant was expected to return) and the conversation between applicant and
       Vic Durham on the previous Friday about Keith firing him, together with
       Keith’s adamant stand in testimony that he had decided to keep Moline (an
       inexperienced sign man) instead of applicant, even though he was only one
       day late, leads me to conclude that the employer had determined prior to
       August 20, 1984 to release applicant from employment and that the reason
       given on August 21 was a pretext. I am convinced that the clear and only
       inference from the evidence is that the actual reason for the discharge was
       applicant’s pressing a compensation claim. Following the precedent of the
       Judson case [Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22
       Cal.3d 658], such a discharge amounts to actionable discrimination under
       Labor Code Section 132a.”
       On this basis, an award was made in favor of Martin and against Sierra Signs (but not
Industrial) equal to one-half Martin’s injury compensation (i.e., $2,100) plus back wages
and expenses in an amount yet to be determined. In addition, Melton was ordered to
reinstate Martin to his job. Neither Mitchell nor Deutinger objected to the fact that the
award was not also made against Industrial.
                             M. Mitchell Reassures Melton
       As soon as he received this second 132a decision, Mitchell sent a letter to Yrulegui
in which he wrote: “Please immediately advise my office of the position of your office,
Industrial Indemnity Company, as to whether they are going to pay this award under their
policy or if you plan on filing a Petition for Reconsideration.” Mitchell sent a copy of the
letter to Melton with the following postscript:

       “Blind P. S.: Dear Mr. Milton [sic]: It is my understanding that the Industrial
       Indemnity Company will be adjusting this award and that you will not be
       charged for this judgment. I have written the above letter to the defense
       attorneys, asking for their confirmation concerning the above. Once I have
       talked with Mr. Yrulegui, I will be recontacting you to discuss this matter.”
Mitchell’s “understanding” was based on a telephone conversation he had with Yrulegui
around the same time in which Yrulegui reportedly said “he was of the opinion that they
[Industrial] would probably go ahead and adjust the award.” Therefore, Mitchell sought to



                                              50.
reassure Melton, who he described as “extremely upset” by the 132a decision. At this
point, according to Mitchell, Industrial still had not taken a formal coverage position, and
Melton knew there was a chance Industrial might refuse to pay the award. Mitchell had
already talked to Melton about the possibility of litigation should this happen.
       Yrulegui, for his part, denied ever telling Mitchell that Industrial would adjust or
settle Martin’s 132a claim.

              “What I said to him so this is clear, I’m sure I said they may pay some
       money. Who knows what they’ll do when push comes to shove. In the
       context of he and I discussing how we could get benefits from I.I. for Mr.
       Melton. But did I tell him that it was my understanding that I.I. was going to
       pay this, no.”

                    N. Yrulegui Files Petition for Reconsideration
                             Melton Reinstates Martin
       The following month, January of 1988, Yrulegui prepared to file a petition for
reconsideration challenging the second 132a decision and asked his assistant, William
Hostetter, to write a statement of facts. Hostetter sent Yrulegui a memo on January 7 in
which, in addition to outlining the evidence in the case, he proposed to “cut our losses” by
offering to settle the case for $30,000. He estimated Martin’s accumulated back wages,
less earnings, were by then about $37,800.
       Hostetter also sent a copy of his memo to Rossi, who made a note to himself: “We
need to meet with insured and John Mitchell.” Rossi wanted to determine what it would
take to resolve the case and he was willing to pay some money toward a settlement, but not
as much as Hostetter proposed. As it turned out, however, Rossi never actually met with
Mitchell and Melton in this regard.
       Hostetter, on the other hand, phoned Mitchell to discuss settlement and suggested to
him that Industrial pay $25,000 and Melton $5,000. Mitchell agreed to discuss this
possibility with Melton. On January 12, Mitchell called Yrulegui and said, according to
Yrulegui’s notes: “Melton can’t afford to pay anything - no money.” Around this same



                                              51.
time, Deutinger called Yrulegui to say he had been unable get Martin to agree to a
settlement amount.
       On January 15, 1988, Yrulegui filed a petition for reconsideration on behalf of both
Sierra Signs and Industrial. Among other things, the petition argued reinstatement was an
inappropriate remedy under the circumstances.
       Melton was especially concerned after the second 132a decision about the prospect
of having to rehire Martin. But Mitchell eventually convinced him reinstatement was
advisable in order to mitigate future damages in the form of Martin’s back wages, and so
Martin returned to work at Sierra Signs on January 25, 1988. He was reinjured on the job
soon afterward and filed a claim with Melton’s subsequent workers’ compensation carrier.
       The WCAB denied the petition for reconsideration in March.
                          O. Industrial Evaluates Its Position
       On February 22, 1988, while the petition for reconsideration was pending, Mitchell
wrote Yrulegui informing him of Martin’s reinstatement and once again urging Industrial to
settle the 132a claim.

       “As you are aware, in the event that this findings and award becomes final, the
       monetary damages, if charged against Mr. Melton, will result in his filing a
       petition in bankruptcy since he does not have sufficient assets in which [sic]
       to comply with the judgment.[23] Throughout the entire proceedings, I do
       note whereby the Industrial Indemnity Company has indicated that they
       would be paying any monetary damages awarded. And on several
       occasions you have attempted to negotiate a final resolution of this
       case.…



23     Beginning sometime after the second 132a decision, Melton expressed concern to
Mitchell about his ability to pay the award should that become necessary. Mitchell referred
Melton to a bankruptcy attorney who would later advise him his assets were sufficient to
cover the prospective award. Consequently, Melton did not end up filing a bankruptcy
petition.




                                             52.
       “………………………………………………………………………………

       “Although Mr. Melton’s position is that the Industrial Indemnity Company is
       legally liable to pay all judgment damages, he would seriously entertain the
       idea of making a contribution towards any ultimate settlement that could be
       derived at [sic] prior to any further legal action.

       “………………………………………………………………………………

       “I would like the Industrial Indemnity Company to use their very best effort at
       this time in an attempt to resolve this case by way of settlement.” (Italics
       added.)
       Yrulegui forwarded a copy of Mitchell’s letter to Rossi. On March 18, soon after
the WCAB denied reconsideration, Rossi telephoned Yrulegui seeking his opinion
regarding coverage for the 132a award. Yrulegui, by his account, refused to discuss the
subject with Rossi and told him to consult some other attorney instead. Yrulegui’s notes of
the conversation also include the statement: “‘He has decision to make re pay or deny.’”
Asked at trial to explain the statement, Yrulegui responded:

               “… that’s why he [Rossi] was calling me. The case was over
       essentially. The decision was becoming final although there was still time to
       file a petition for writ of review. There had been a demand made upon him by
       Mitchell to pay the award essentially. The letter we just went over. And he
       had to make a decision on--in one way or the other. That essentially is more
       of a statement than any discussion we had. I don’t recall that we would have
       discussed it. It was something that was fairly obvious.

              “......................................................................................................................

              “That’s what was said in the conversation. I don’t know whose
       statement it was. But essentially it was a statement of fact. I mean I.I. had to
       make a decision on the coverage issue at some point.”
       Also on March 18, Mitchell called Yrulegui inquiring whether Industrial would pay
the 132a award. Yrulegui returned the call on March 21. He recounted his earlier
conversation with Rossi, and told Mitchell Industrial had not yet made a decision about the
132a. And he explained to Mitchell that he was not advising Industrial on coverage.




                                                                53.
       Rossi also sought the advice of Neil Piethe, the workers’ compensation claims
manager at Industrial’s home office. He sent Piethe a copy of Mitchell’s February 22 letter
with the notation: “Please review & then lets [sic] discuss.” Rossi was particularly
concerned about the italicized portion of Mitchell’s letter quoted above. “I needed some
advice as to what course we should be taking as I have had--had never been faced with this
type of exposure before.” Rossi subsequently notified Mitchell he was deferring a decision
on payment or settlement of Martin’s 132a claim pending the home office review.
       At the home office, Piethe referred the matter to Richard Sullivan, then a senior
director of workers’ compensation claims. On March 22, Rossi wrote a memo to Sullivan
in which he proposed that Industrial attempt a settlement. According to Rossi, he also sent
the entire claim file to Sullivan; Sullivan, however, testified he received only Rossi’s
memo.24 After providing a brief history of the case, the memo set out Rossi’s concerns as
follows:

       “Our problems are many in this case in that 1) the insured is a one-man
       operation who in no way is capable of making any form of payment on this
       order and will be filing bankruptcy in order to protect his personal assets; 2)
       if, after filing bankruptcy, according to the Cumis attorney, John Mitchell, in
       all likelihood will file suit against I.I. as he is of the opinion that there lies
       coverage under the workers compensation policy; 3) the fact that we offered
       a nominal amount in the way of a settlement offer does not in any way
       estoppel our position that coverage is not afforded under the comp policy.

       “………………………………………………………………………………

       “It is our opinion that since there is basically no money on the part of Sierra
       Signs to pay this award and that there is a good possibility of a suit being filed
       against Industrial Indemnity, we give some thought to making a good faith
       settlement. There is a possibility of settling this case in the area of $20,000
       to $25,000 at this point in time.”


24     Sullivan was unavailable to testify at trial for medical reasons, so his deposition
testimony was read into the record.




                                              54.
By “our opinion,” Rossi was referring to Neil Piethe and Tina Rauch in addition to himself.
       Notably, Rossi made no mention in the memo of the fact Industrial had not sent
Melton a 132a letter. The reason he did not, he testified later, was because he believed
Souza, Yrulegui, and Mitchell had told Melton verbally there was no coverage for the 132a.
The memo, however, also failed to inform Sullivan that Melton had received any such verbal
notification.
       Rossi’s purpose in sending the memo to Sullivan was “to get some guidance as to
whether or not we were in any way liable for payment of any benefits.” He was seeking a
home office determination whether the 132a was covered under the policy, or whether
Industrial was estopped to rely on its coverage defenses.
       A C-MAP entry by Tina Rauch for March 28 reflects the following phone call from
Sullivan: “DICK IS OF POSITION WE DO NOT OWE ANYTHING OTHER THAN
DEFENSE COSTS ON ANY 132A, BUT WILL BE CONTACTING E & Y [Emerson &
Yrulegui] DIRECT FOR FURTHER CLARIFICATION PRIOR TO CONFIRMING HIS
RECOMMENDATION.” Sullivan, however, testified he never talked to anyone at Industrial
other than Rossi. In any event, he told Rossi essentially the same thing as was reflected in
Rauch’s C-MAP. In addition,

       “… I reinforced with him the importance there is a principal involved here.
       That we don’t have an obligation in that respect, and, therefore, we should not
       be making any payments in that respect irrespective of what the God damn
       legal costs are. My personal, you know, approach to that from the standpoint
       of any communication with any field office, and I feel very strongly about
       that, is that that’s a personal responsibility of the insured and they should deal
       with it on their own and we shouldn’t be making any payment in that respect
       because it’s not a legal responsibility of ours.”
Sullivan did not discuss Melton’s financial predicament with Rossi because “I’m [n]ot
concerned with those things.” Similarly, he did not address Rossi’s concern about an
estoppel. “My position was that, you know, we don’t owe anything on this type situation, so
we shouldn’t be paying anything and that’s it. All the other is just a matter of speculation.”


                                              55.
       Sullivan also had a second telephone conversation with Rossi in which Rossi said
Yrulegui was suggesting Industrial pay the 132a award. Sullivan then called Yrulegui to find
out “where in the hell he was coming from.”
       Sullivan testified:

               “The second Rossi conversation was the fact that he called up and was
       talking about Richard, making, you know, noises about us paying this, and so I
       reinforced with him again we should not be paying this. And so then I called
       Richard to find out where he was coming from in his recommendation, one
       thing or another. And it was a little strange because it seemed to be
       completely out of context. And he had mentioned that he had been to some,
       you know, seminar and from that seminar he had the view that, you know, that
       these would be paid under the one--I mean that we would have an obligation to
       pay that. And I says, ‘Well, it’s sure news to me. The law is the law and
       there’s been no change in it that I know about to [justify] having an obligation
       because that’s primarily a deterrent to the insured from those types of
       practices. Therefore, you know, I can’t agree. We shouldn’t be making any
       payment on that.’”
       Yrulegui, on the other hand, testified he gave Sullivan no more than a factual history
of the case; he was adamant he did not discuss coverage. In his notes from the conversation,
Yrulegui wrote: “background of case - refused to discuss coverage & he didn’t ask.” 25
                             P. Rossi Sends No-Coverage Letter
       On April 5, 1988, reportedly per Sullivan’s instructions, Rossi sent the following
letter to Yrulegui, Melton, and Mitchell setting out Industrial’s coverage position in writing
for the first time.

       “The purpose of this letter is to provide notice to all parties that Industrial
       Indemnity does not provide insurance coverage under its Workers
       Compensation Policy for a 132A action.


25      The decision whether or not to pay the 132a award was ultimately Rossi’s to make;
he did not need Sullivan’s approval one way or the other. Industrial’s claims offices,
including Fresno, could have paid up to $150,000 without authorization from the home
office.




                                              56.
       “The policy of insurance under the Insuring Agreements reads:

              “‘IV. Application of Policy
              “This policy applies only to injury (1) by accident . . ., or (2) by
              disease . . .’

       “Thus, we do not provide insurance coverage under this policy for events
       which do not result in bodily injury. Furthermore, we are prevented by law
       from insuring liability arising from intentional conduct. Insurance Code
       Section 533 provides:

              “‘An insurer is not liable for a loss caused by the willful act of the
              insured; . . .’

       “While there are no established requirements for Industrial Indemnity
       Company to defend this litigation, as a service to our insured, we will pay
       reasonable and normal legal expenses necessary for the defense of this Labor
       Code Section 132A litigation.

       “If there is any question as to our position in this matter, please do not
       hesitate to give me a call.”
       Except for the absence of language offering the insured a choice of attorneys,
Rossi’s letter generally tracked the sample 132a letter contained in Industrial’s claims
manual.26 According to Rossi, his letter contained all the reasons he was aware of for
denying coverage in this case. Notably, it made no mention of the fact Melton fired Martin
after the policy had expired.




26     Rossi’s letter omitted the following paragraph as it appears in the sample letter after
the quotation from Insurance Code section 533:

       “Because discrimination is considered intentional conduct, you have an
       exposure in this case that is not covered by your insurance policy with
       Industrial Indemnity. Your maximum uninsured exposure is limited by law to
       $10,000 plus costs and expenses not to exceed $250.”
The $10,000 limitation on an employer’s “maximum uninsured exposure” does not include
back wages, which in this case was the principal component of the 132a award.




                                              57.
       Two days later, on April 7, Mitchell wrote to Industrial acknowledging Rossi’s letter
and inquiring whether, given Melton’s financial circumstances, Industrial would be willing
to contribute money toward a settlement in lieu of paying additional defense costs to seek
review of the 132a decision. Rossi wrote back agreeing to pay the additional costs. As for
making a contribution, Rossi wrote: “Insofar as the bulk of the legal fees have been paid in
the defense of this case, we can’t see our savings on future costs as being a real incentive or
much of a contribution in getting this case resolved.” By this he meant only that the amount
Industrial might be willing to contribute would be relatively small in comparison to the total
award, not that Industrial was unwilling to contribute anything. “[I]f it came down to sitting
down and making a--an offer, I’m sure that we would have been willing to throw in some
money.”
                    Q. Hearing to Determine Martin’s Back Wages
       On April 12, 1988, Deutinger filed a petition with the WCAB requesting a
supplemental hearing to determine the amount of Martin’s back wages due as part of the
132a award.
       In anticipation of the supplemental hearing, Mitchell again wrote Rossi requesting
that Industrial review its coverage position and consider paying the 132a award or settling
the case. Rossi sent a copy of the letter to Sullivan, who instructed Rossi to deny the
request. Rossi sent Mitchell a letter in October in which he wrote that, given the lack of
coverage, “we will not entertain any type of settlement offer.”
       The supplemental hearing was held on December 9, 1988. At issue was Martin’s
work history between August 21, 1984, when he was discharged by Melton, and January 25,
1988, when he was reinstated to his job at Sierra Signs. Once again, the minutes of the
hearing reflect that Yrulegui appeared for Industrial and Mitchell appeared for Melton.
       The WCJ issued his “SUPPLEMENTAL FINDINGS, AWARD AND ORDER” on
March 24, 1989. As had most of the other documents in this case, the decision listed both
Sierra Signs and Industrial as defendants. The WCJ found Martin was entitled to recover

                                             58.
back wages calculated at the rate of $264 per week, less $6,395 in earnings and
unemployment benefits he had received in the period prior to his reinstatement. Award in
this amount was made in favor of Martin and against Industrial (but not against Sierra Signs).
When she received a copy of the decision on March 27, Schwarer forwarded it to Rossi
with the notation “Dennis Help!” Rossi phoned Yrulegui and asked him to take action to
have Industrial’s name removed. According to Rossi, Yrulegui agreed to write a letter to
the WCJ. The next day, March 28, the WCJ issued an order amending the award to show it
was against Sierra Signs rather than Industrial. The order continued to list Industrial as a
defendant. Neither Mitchell nor Deutinger objected to the change.
       Yrulegui’s records indicate he had a telephone conversation with Rossi on March 28
regarding the “status” of the case. Yrulegui denied they discussed the supplemental hearing
decision, and denied any knowledge of why the decision was changed. Neither the WCAB
file nor Yrulegui’s file contains any record of a contact between Yrulegui and the WCJ on
March 28.
       Industrial maintained at trial that the first supplemental award, made against it rather
than Melton, was a clerical error corrected by the WCJ without any intervention by
Yrulegui. In support of this position, Industrial requested the court instruct the jury on the
power of a workers’ compensation judge to correct clerical errors on his or her own
initiative. We will address below Industrial’s contention the court erred by giving only a
modified instruction.
                             R. Melton Pays the 132a Award
       In April of 1989, based on the WCJ’s supplemental findings and award, Deutinger
obtained a judgment in favor of Martin and against Sierra Signs in the amount of $47,802.60
for back wages, plus $6,251.11 in interest for a total of $54,053.71. Deutinger then wrote
to Mitchell demanding payment of this amount. After some discussion between the parties
about alternative ways to satisfy the judgment, and after considering bankruptcy, Melton



                                              59.
eventually borrowed money against his house and paid Martin $47,772.42.27 It appears
Melton’s obligation to pay interest on this amount was still in dispute at the time of trial.
                          S. Melton Brings Action for Bad Faith
       Melton had begun a year earlier, soon after receiving Rossi’s no-coverage letter in
April of 1988, to look into the possibility of filing suit against Industrial for insurance bad
faith. Mitchell, aware he probably would become a witness in such an action, referred
Melton to Richard Belardinelli. On February 6, 1989, Belardinelli wrote a 74-page letter to
Rossi, accompanied by numerous exhibits, requesting that Industrial accept coverage for
Melton’s 132a liability and pay him damages as well. Among other things, Belardinelli
argued that Industrial had waived its coverage defenses, or was estopped to assert them,
because it had misled Melton into believing it would pay any 132a award.
       Belardinelli’s letter was referred to Andre Hassid, manager of the claims counsel
department in Industrial’s home office. In preparing a response, Hassid did some legal
research and spoke with Yrulegui, Souza and/or Rauch, and perhaps with Sullivan about the
case. On March 17, 1989, Hassid wrote back to Belardinelli disputing each of his
arguments and reasserting Industrial’s no-coverage position.28 With regard to
Belardinelli’s waiver/estoppel argument in particular, Hassid claimed Yrulegui had
informed Melton at the outset of the case that he would be personally liable for a 132a




27      Elsewhere, the record indicates Melton borrowed $60,000 in June of 1989. He paid
$23,539.27 to Martin in back wages; $19,532.65 in payroll taxes; and $5,000 for Martin’s
attorney fees. He also paid an accounting charge of $2,000 and loan fees of $1,395. The
total, $51,466.92, would be used as the amount Industrial owed Melton under the policy for
purposes of determining his economic damages.
28    Neither Belardinelli’s letter nor Hassid’s response was entered into evidence, but
both were attached to the complaint and both were discussed at some length during the two
men’s trial testimony.




                                              60.
award. Hassid did not mention, and indeed was unaware of, Souza’s conversation with
Melton on August 26, 1985, in which she purportedly told him the 132a was not covered.
       Hassid’s letter would subsequently generate some controversy during the trial for
two reasons. First, Hassid’s no-coverage letter, like Rossi’s letter the year before, did not
rely as a reason for denying coverage on the fact that Melton had discharged Martin after
the expiration of Sierra Signs’s policy with Industrial. Hassid testified it was Industrial’s
practice to provide a courtesy defense in 132a cases based upon the date of the injury that
gave rise to the discriminatory act, rather than on the date of the discriminatory act itself.
The court would later instruct the jury that an insurance company that relies on specified
grounds for denying a claim waives the right thereafter to rely on other grounds
discoverable through a reasonable investigation.
       Second, Hassid’s assertion Melton was aware Industrial’s no-coverage position was
based largely on what, according to Hassid, Yrulegui had said about his conversation with
Melton on August 26, 1985. Melton (who denied having talked to Yrulegui on that day)
argued at trial that Yrulegui had breached client confidentiality by disclosing the substance
of the conversation to Hassid. Yrulegui denied discussing the conversation with Hassid.
The court ultimately ruled there had been no breach of confidentiality because Yrulegui was
jointly representing both Melton and Industrial when the conversation allegedly occurred,29
and because Yrulegui was entitled to respond to the allegations in Belardinelli’s letter. The
jury was instructed accordingly.
       Melton filed his bad faith complaint on May 19, 1989, two months after receiving
Hassid’s letter.


29      This basis for the court’s conclusion is only partially correct. In fact, Yrulegui
jointly represented Melton and Industrial with respect to Martin’s injury claim only. He
would later come to represent Melton with respect to the 132a, but only on the issue of
liability, not coverage.




                                              61.
         [The following sections (III - IIIA) are to be published.]*
                                       III. DISCUSSION
         Industrial challenges the judgment on numerous grounds.30 Its principal contention
is that it did not breach its insurance contract with Melton because there was no coverage
under the policy for an employer’s 132a liability, and because implied waiver, if it applied
at all, could not have created coverage where none existed before. Without a contractual
duty to defend or indemnify Melton, Industrial continues, it could not have breached the
implied covenant of good faith and fair dealing. And on that premise, Industrial contests the
jury’s award of attorney fees as damages in the bad faith action.
         As for each of Melton’s other causes of action, Industrial maintains the court’s
estoppel findings effectively negated one or more of the elements necessary to establish
liability.
         Finally, Industrial contends the trial court gave the jury an incomplete and erroneous
special verdict form; the court committed many other evidentiary and instructional errors
requiring reversal; and the evidence fails to support some elements of the jury’s damages
award.




*   See footnote, ante, page 1.
30      Industrial moved unsuccessfully in the trial court to dismiss Melton’s complaint on
the ground his claims fell within the exclusive jurisdiction of the WCAB. It renews this
objection in a footnote to its opening brief on appeal. As the court correctly pointed out in
denying the motion however, the Board’s jurisdiction does not extend to claims by an
employer (as opposed to an employee) against the employer’s workers’ compensation
carrier. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216.) “[T]he WCAB was
not created to adjudicate claims of bad faith and breach of contract made by an employer
against a compensation carrier. In fact, the WCAB has no jurisdiction to grant the remedies
to which the employer may be entitled.” (Id. at p. 222.)




                                                62.
                            A. Breach of Contract -- Coverage
       The trial court concluded Industrial’s policy did not cover Melton’s 132a liability
because the policy, by its terms, applied only to “injury … by accident occurring during the
policy period” (italics added), and because the public policy expressed in sections 533 of
the Insurance Code and 1668 of the Civil Code precludes coverage for an insured’s willful
acts. This conclusion, of course, was based on the premise Melton’s discharge of Martin
was a willful act, an issue Melton has not conceded.
       Although Industrial prevailed on the coverage question at trial, it has raised it again
on appeal, arguing there is no coverage for the same reasons cited by the court, as well as
for two additional ones. In the course of our review of this question, we asked the parties to
submit supplemental briefing regarding the accident limitation. In its response, Industrial
now contends the matter of coverage is not properly before us except indirectly insofar as
it relates to the jury’s implied finding of contract by waiver. That is, Industrial notes
Melton has not cross-appealed from the judgment to challenge the court’s adverse coverage
ruling, nor does Melton contend the court’s error, if any, in submitting the contract by
waiver theory to the jury was harmless because coverage existed under the policy.
       In a related argument, Industrial seems to contend, in effect, that we may not affirm
the jury’s verdict, but must remand for retrial, if we find coverage existed on any ground
other than a “contract by waiver.” This is so, it reasons, because the jury did not have the
opportunity to consider any other grounds. We will briefly address these two contentions.
       As a general rule, an appellate court will not review an error committed against a
nonappealing party. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 323, p. 361.) We
may, however, at the respondent’s request, review any of the trial court’s intermediate
rulings “for the purpose of determining whether or not the appellant was prejudiced by the
error or errors upon which he relies for reversal or modification of the judgment from
which the appeal is taken.” (Code Civ. Proc., § 906; Erikson v. Weiner (1996) 48
Cal.App.4th 1663, 1671.) Here, the trial court ruled there was no coverage for Melton’s

                                              63.
132a liability but it permitted the case to go to the jury on a contract by waiver theory (as
well as the theory Industrial assumed a duty of good faith and fair dealing irrespective of
policy coverage once it undertook to provide Melton with a courtesy defense). Industrial
challenges the jury’s contract by waiver verdict on several grounds, including an argument
that waiver cannot create coverage where none existed before. Thus, it is precisely to show
prejudice that Industrial raises the coverage issue on appeal. And, although Melton does not
phrase it in such terms, his counter-argument in favor of coverage, if successful, would
show that the jury’s reliance on the contract by waiver theory, if erroneous, was not
prejudicial. Accordingly, we may review the trial court’s coverage ruling.
       Industrial’s second contention is difficult to follow, but seems to be based on the
premise the particular legal theory under which coverage was found to exist was critical to
the jury’s finding of bad faith. That is, the argument appears to assume the jury, given the
trial court’s ruling of no coverage, found Industrial’s preeminent act of bad faith was its
ultimate refusal to acknowledge it had waived its coverage defenses. So Industrial contends
in effect that, if coverage existed from the beginning, a new trial is required to determine
whether Industrial’s initial denial of coverage was reasonable, e.g., whether it was based on
a genuine or debatable issue of law. This contention, if we understand it correctly, confuses
the contract theory giving rise to a duty of good faith with the acts constituting a breach of
the duty.
       The jury’s verdict was not based on Industrial’s failure to extend coverage on any
particular ground. In essence, the jury found Industrial had acted in bad faith by failing
unreasonably to honor its obligations under the insurance policy to defend and indemnify
Melton against Martin’s 132a claim. The verdict supposed Industrial had a contractual
obligation to Melton and looked to Industrial’s acts and omissions in performance of that
obligation, not to the specific contractual term or legal theory under which the obligation
arose. Here the jury found that Industrial, although it could have, chose by implication not
to assert its legitimate coverage defenses and, in effect, accepted coverage. If, on the other

                                              64.
hand, the court had ruled there was coverage, the jury would not have needed to consider the
contract by waiver theory, but its task would have been the same with regard to bad faith.
         With this in mind, we turn to the matter of coverage. We begin with an overview of
the workers’ compensation system in California and the requirement that an employer
insure itself against liability for workers’ compensation benefits.
         [The portions of this opinion that follow (parts IIIA1 - IIIA6) are deleted from
publication.]*
                           1. The Workers’ Compensation System
         The California workers’ compensation law is a statutory scheme enacted by the
Legislature pursuant to a constitutional grant of plenary power to create and enforce a
“complete system of workers’ compensation.” (Cal. Const., art. XIV, § 4.) The right to
workers’ compensation benefits is wholly statutory and is not derived from common law.
(DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.)
         The workers’ compensation law is contained principally in division 4 of the Labor
Code (§§ 3200-6002). Where the conditions of compensation exist, an employer is liable,
regardless of fault, for the compensation provided under division 4 for “any injury”
sustained by an employee arising out of and in the course of the employment. (§ 3600.) As
we will explain, this liability extends to some intentionally-caused injuries, including those
arising from a wrongful termination. With certain exceptions, the right to recover such
compensation is the sole and exclusive remedy of the employee against the employer.
(§ 3602.)

         “[T]he legal theory supporting such exclusive remedy provisions is a
         presumed ‘compensation bargain,’ pursuant to which the employer assumes
         liability for industrial personal injury or death without regard to fault in
         exchange for limitations on the amount of that liability. The employee is


*   See footnote, ante, page 1.




                                               65.
       afforded relatively swift and certain payment of benefits to cure or relieve the
       effects of industrial injury without having to prove fault but, in exchange,
       gives up the wider range of damages potentially available in tort.”
       (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.)
       The workers’ compensation law must, among other things, make “full provision for
adequate insurance coverage against liability to pay or furnish compensation; full provision
for regulating such insurance coverage in all its aspects …; [and] full provision for
otherwise securing the payment of compensation .…” (Cal. Const., art. XIV, § 4.)
Accordingly, every employer except the state is required to “secure the payment of
compensation” either by purchasing insurance or by self-insuring against its statutory
liability. (§ 3700.) Employers who comply with the insurance requirement are relieved of
liability for compensation, which is assumed by the insurance carrier. (Employers Mutual
Liability Ins. Co. v. Tutor-Saliba Corp. (1998) 17 Cal.4th 632, 638.) An employer who
does not meet the requirement is subject to severe sanctions. Failure to comply is a
misdemeanor (§ 3700.5) and exposes the employer to civil liability for the employee’s
injury (§ 3706). (See also §§ 3715, subd. (a); 4555; 5600.) The employer may be
prohibited from using employee labor until it complies with section 3700. (§ 3710.1.)
And, when an employer’s failure to comply is willful, the amount of compensation
otherwise recoverable is increased by 10 percent. (§ 4554.)
       Workers’ compensation insurance includes insurance against loss from liability
imposed under the workers’ compensation law. (Ins. Code, § 109.) Chapter 2 of part 3 of
division 2 of the Insurance Code (Ins. Code, §§ 11630-11663) regulates the content of
workers’ compensation insurance policies. “‘The terms of workers’ compensation policies
issued in California are strictly governed by statute, and each policy is conclusively
presumed to contain all the provisions required by law.’ [Citation.]” (La Jolla Beach &
Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 36.)




                                             66.
                                      2. The Policy
      For the period from August 1, 1983, to August 1, 1984, Melton was insured by
Industrial under a “STANDARD WORKERS’ COMPENSATION AND EMPLOYERS’
LIABILITY POLICY,” subject to an amendatory endorsement for California. Under the
heading of “INSURING AGREEMENTS,” Industrial agreed:

      “I. COVERAGES

      “Coverage A – Workers’ Compensation

      “To pay promptly when due all compensation and other benefits required of
      the insured by the workers’ compensation law.

      “Coverage B – Employers’ Liability

      “To pay on behalf of the insured all sums which the insured shall become
      legally obligated to pay as damages because of bodily injury by accident or
      disease, including death at any time resulting therefrom,

      “………………………………………………………………………………

      “II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS

      “As respects the insurance afforded by the other terms of this policy, the
      company shall:

      “(a) defend any proceeding against the insured seeking such benefits and any
           suit against the insured alleging such injury and seeking damages on
           account thereof, even if such proceeding or suit is groundless, false or
           fraudulent; but the company may make such investigation, negotiation
           and settlement of any claim or suit as it deems expedient;

      “………………………………………………………………………………

      “III. DEFINITIONS

      “(a) Workers’ Compensation Law. The unqualified term ‘workers’
           compensation law’ means the workers’ or workmen’s compensation law
           and any occupational disease law of a state designated in Item 3 of the
           declarations [i.e., California], but does not include those provisions of
           any such law which provide non-occupational disability benefits.



                                           67.
       “………………………………………………………………………………

       “IV. APPLICATION OF POLICY

       “This policy applies only to injury (1) by accident occurring during the policy
       period, or (2) by disease caused or aggravated by exposure of which the last
       day of the last exposure, in the employment of the insured, to conditions
       causing the disease occurs during the policy period.”
As discussed below, this last provision, part IV, was amended by the endorsement with
respect to coverage A.
       The next section of the policy, entitled “EXCLUSIONS,” makes no reference
directly or indirectly to an employer’s liability under section 132a. By contrast, the
endorsement expressly excludes coverage for the additional compensation imposed on an
employer under section 4553 for injuries resulting from the employer’s serious and willful
misconduct.
       The policy expressly incorporates all the provisions of the workers’ compensation
law with respect to coverage A, and provides that any policy term in conflict with the law is
amended to conform to it.
       We are concerned here only with Industrial’s duty under coverage A “[t]o pay
promptly when due all compensation and other benefits required of the insured by the
workers’ compensation law.” By its exclusionary terms, coverage B does not apply “to any
obligation for which the insured or any carrier as his insurer may be held liable under the
workers’ compensation or occupational disease law of [California] .…” Employers’
liability insurance (coverage B) written in conjunction with workers’ compensation policies
“is intended to serve as a ‘gap-filler,’ providing protection to the employer in those
situations where the employee has a right to bring a tort action despite the provisions of the
workers’ compensation statute or the employee is not subject to the workers’
compensation law. [Citation.] Generally, these two kinds of coverage are mutually
exclusive.” (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 916,
fn. omitted.) Since Martin’s 132a claim sought to impose liability under the workers’


                                             68.
compensation law, Industrial’s obligations to Melton, if any, arose under coverage A. (See
La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co., supra, 9 Cal.4th at pp. 42-
43 [insurer’s duty to defend claim for workers’ compensation benefits is owed under
workers’ compensation part of policy]; Transamerica Ins. Co. v. Superior Court (1994)
29 Cal.App.4th 1705, 1715 [where workers’ compensation liability exists, there is no
coverage under the employer’s liability portion of policy].)
                                3. Rules of Policy Interpretation
       The interpretation of an insurance policy, as with any written contract, is primarily a
judicial function. Unless the interpretation turns on the resolution of disputed factual
issues, a reviewing court is not bound by the lower court’s determination. Rather, we
exercise our own independent judgment regarding the meaning of the policy language.
(Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1100;
Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 45.)
       “While insurance contracts have special features, they are still contracts to which
the ordinary rules of contract interpretation apply.” (Bank of the West v. Superior Court
(1992) 2 Cal.4th 1254, 1264.)

               “Under statutory rules of contract interpretation, the mutual intention
       of the parties at the time the contract is formed governs interpretation. (Civ.
       Code, § 1636.) Such intent is to be inferred, if possible, solely from the
       written provisions of the contract. (Id., § 1639.) The ‘clear and explicit’
       meaning of these provisions, interpreted in their ‘ordinary and popular sense,’
       unless ‘used by the parties in a technical sense or a special meaning is given
       to them by usage’ (id., § 1644), controls judicial interpretation. (Id., §
       1638.) Thus, if the meaning a layperson would ascribe to contract language is
       not ambiguous, we apply that meaning. [Citations.]” (AIU Ins. Co. v.
       Superior Court (1990) 51 Cal.3d 807, 821-822.)
       “‘An insurance policy provision is ambiguous when it is capable of two or more
constructions both of which are reasonable.’” (Bay Cities Paving & Grading, Inc. v.
Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 867.) An ambiguity is to be resolved by
interpreting the ambiguous provision in the sense the promisor (i.e., the insurer) believed


                                             69.
the promisee (i.e., the insured) understood it at the time it was made. (AIU Ins. Co. v.
Superior Court, supra, 51 Cal.3d at p. 822; Civ. Code, § 1649.) “This rule, as applied to a
promise of coverage in an insurance policy, protects not the subjective beliefs of the
insurer, but, rather, ‘the objectively reasonable expectations of the insured.’” (Bank of the
West v. Superior Court, supra, 2 Cal.4th at p. 1265.) Only if application of this rule fails
to resolve the ambiguity is it then construed against the insurer. (Ibid., Civ. Code, §
1654.) 31

              “In summary, a court that is faced with an argument for coverage based
       on assertedly ambiguous policy language must first attempt to determine
       whether coverage is consistent with the insured’s objectively reasonable
       expectations. In so doing, the court must interpret the language in context,
       with regard to its intended function in the policy. [Citation.] This is because
       ‘language in a contract must be construed in the context of that instrument
       as a whole, and in the circumstances of that case, and cannot be found to be
       ambiguous in the abstract.’ [Citations.]” (Bank of the West v. Superior
       Court, supra, 2 Cal.4th at p. 1265.)
       Industrial argues the policy did not cover Melton’s 132a liability for four reasons:
(1) a discriminatory discharge in violation of section 132a is not an “accident”; (2) the
forms of relief afforded for a 132a violation do not constitute “compensation and other
benefits” within the scope of coverage A; (3) the policy was not in effect when Melton
discharged Martin; and (4) public policy precludes coverage for willful acts. The trial court
concluded coverage did not exist for the first and fourth of these reasons.32 We address
them in a somewhat different order.


31     Melton asserts the law governing interpretation of insurance policies underwent a
change beginning in 1990, and he argues the Industrial policy must be interpreted using the
law in existence during the period from 1983 to 1985 when the present coverage issue
arose. Assuming the law changed, we will apply the rule that new judicial decisions apply to
cases still open. (Cf. Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24-25.)
32      As noted, neither Rossi’s letter of April 5, 1988, nor Hassid’s of March 17, 1989,
relied as a basis for denying coverage on the second and third reasons now offered by



                                              70.
       Before considering any exclusions or limitations, we must first examine a policy’s
coverage provisions to determine whether a claim falls within its terms. (Waller v. Truck
Ins. Exchange, Inc., supra, 11 Cal.4th at p. 16.) This is so for two reasons. First, where a
claim clearly is not included within the insuring agreement, it need not be specifically
excluded. Second, while limitations on coverage are narrowly construed and must be
proved by the insurer, the burden is on the insured to bring the claim within the basic scope
of coverage. (Ibid.)
                         4. “Compensation and Other Benefits”
       Coverage A requires Industrial “[t]o pay promptly when due all compensation and
other benefits required of the insured by the workers’ compensation law.” The policy, by
its terms, incorporates all provisions of the “workers’ compensation law” with respect to
coverage A, and further provides that any policy term in conflict with the law is amended to
conform to it.
       “Compensation” is statutorily defined as “compensation under Division 4 [of the
Labor Code] and includes every benefit or payment conferred by Division 4 upon an injured
employee, including vocational rehabilitation, or in the event of his death, upon his
dependents, without regard to negligence.” (§ 3207.) Referring to the section 3207
definition, Industrial maintains coverage A applies only to compensation and other benefits
required of an insured by division 4 of the Labor Code. It argues the remedy afforded by




Industrial in support of its no-coverage position. The court instructed the jury that an
insurance company that relies on specified grounds for denying a claim waives the right
thereafter to rely on other grounds discoverable through a reasonable investigation. For
reasons explained below, we will conclude Industrial is estopped to assert reason number
three (expiration of the policy period). However, we will consider reason number two (the
coverage clause) because it presents a purely legal question and because it does not appear
Melton was prejudiced by Industrial’s failure to assert it.




                                             71.
section 132a does not fall within this coverage because section 132a is in division 1 of the
code, and because the remedy is in the nature of a penalty rather than compensation.33
       In determining the scope of coverage A, we look first to the language of the policy
to ascertain if possible its plain meaning, or the meaning a layperson would ordinarily attach
to it. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 18.) Absent evidence
the parties attached some special meaning to these words, we interpret them in their
“ordinary and popular sense.” (AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at p. 822.)
       In particular, we are concerned with the meaning of the phrase “all compensation and
other benefits required of the insured by the workers’ compensation law.” Industrial would
have us read it to mean “all compensation required of the insured by division 4 of the Labor
Code.” We believe the more reasonable interpretation is “all compensation and other
benefits recoverable in a workers’ compensation proceeding.” (See La Jolla Beach &
Tennis Club, Inc. v. Industrial Indemnity, Inc., supra, 9 Cal.4th at p. 42 [coverage under
workers’ compensation policy for “benefits required of you by the workers’ compensation
law” “is susceptible of no other objective construction than providing coverage solely for



33      As noted above, the previous version of section 132a provided that an employer who
violated the statute was guilty of a misdemeanor and “subject to the provisions of Section
4553.” In addition, the employee was entitled to reinstatement and reimbursement for lost
wages and benefits. (Stats. 1978, ch. 1250, § 3, p. 4065.) Section 4553, which is in
division 4 of the Labor Code, provided the “amount of compensation otherwise recoverable
shall be increased one-half,” up to a maximum of $10,000, plus costs and expenses not to
exceed $250. (Stats. 1972, ch. 1029, § 1, p. 1907.) Section 132a was amended in 1982 to
delete the reference to section 4553 while incorporating its basic provisions. (Stats. 1982,
ch. 922, § 1, p. 3363.) Section 4553 was amended at the same time to remove the $10,000
limit on the amount of increased compensation recoverable. (Stats. 1982, ch. 922, § 10, p.
3369.) Thus, since section 132a no longer referred to section 4553, it arguably lost its
connection to division 4 of the Labor Code, as well as to section 11661 of the Insurance
Code, which prohibits insurance against an employer’s liability for the additional
compensation imposed under section 4553.




                                             72.
workers’ compensation benefits, or claims, proceedings, or suits for such benefits, and not
for civil suits for damages”].) Although section 132a does not provide the exclusive
remedy for discrimination based on a work-related disability, the specific remedies it
affords can only be recovered in a proceeding before the WCAB. (City of Moorpark v.
Superior Court (1998) 18 Cal.4th 1143, 1155-1156; § 5300.) It follows that section 132a
is part of the general “workers’ compensation law” and anything it provides in the nature of
“compensation” or “other benefits” therefore falls within the ambit of coverage A.
       Industrial also contends a 132a award is really a penalty rather than a form of
compensation. However, section 132a itself provides for increased “compensation.” And
a 132a award serves a remedial as well as a deterrent purpose. (Judson Steel Corp. v.
Workers’ Comp. Appeals Bd., supra, 22 Cal.3d at p. 668 [“although one function of
section 132a may be to deter employers from discriminating against industrially injured
employees, the statute also serves a remedial function, by providing some compensation to
the aggrieved worker for discrimination incurred as the result of his injury”]. Indeed, the
workers’ compensation system only authorizes the payment of “compensation” for work-
related injuries and does not permit the imposition of penalties. (Cf. State Dept. of
Corrections v. Workmen’s Comp. App. Bd. (1971) 5 Cal.3d 885, 888-889.) Thus, while
the 50 percent increase in compensation for discrimination under section 132a is
sometimes characterized as a penalty, it has been held to be compensatory in two respects.

       “First, the employee is compensated for damages directly caused as the
       result of the employer’s prohibited discriminatory conduct.… Secondly, as
       the workers’ compensation benefits ordinarily provided do not fully
       compensate the employee for his injuries and his other detriment, the
       allowance of the increase in benefits provides more nearly full compensation
       in those cases where the employer has discriminated against the employee
       because of an industrial injury.” (Burton v. Workers’ Comp. Appeals Bd.
       (1980) 112 Cal.App.3d 85, 90-91.)
       Finally, Industrial argues a section 132a award does not constitute “other benefits”
because “that term necessarily has reference to other benefits awarded under the workers’


                                             73.
compensation system, such as vocational rehabilitation and death benefits.” This position
rests on the premise that “compensation” and “other benefits,” as those terms are used in
the policy, mean essentially the same thing. However, as noted, section 3207 defines
“compensation” to include “every benefit or payment conferred by Division 4 upon an
injured employee, including vocational rehabilitation, or in the event of his death, upon his
dependents .…” (Ferguson v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613,
1619 [the broad language of section 3207 “leaves no doubt” compensation includes
vocational rehabilitation and other nonindemnity benefits provided by division 4 of the
Labor Code].) Thus, if Industrial’s position were correct, there would be no “other
benefits” and the term would be entirely superfluous. This construction disregards the
well-established rule that every term in a policy must be given effect whenever possible.
(Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113,
1127.) Therefore the term “other benefits,” if it is to have any meaning at all, must refer to
workers’ compensation benefits not included within the definition of compensation, and so
to benefits, if any, in addition to those provided in division 4 of the Labor Code.
       Industrial cites several out-of-state cases in support of its position a 132a award is
not among these “other benefits.” All these cases are distinguishable. In each, the state’s
workers’ compensation law permitted an employee to recover damages in a civil action
against his or her employer for retaliatory discharge or some other form of discrimination
based on a work-related injury. The policies in question all contained language similar if
not identical to that involved here, extending coverage to compensation and other benefits
required of the insured under the state’s workers’ compensation law. The courts held there
was no coverage under the policies and no duty to defend the employer against such an
action. Although their reasoning varied somewhat, they reached this result because, among
other things, they concluded “compensation and other benefits” do not include civil
damages. (County of Maverick v. Workers’ Comp. Fund (Tex.App. 1993) 852 S.W.2d
700; Richardson v. Owens-Illinois Glass Container, Inc. (W.D.Tex. 1988) 698 F.Supp.

                                              74.
673; Vallier v. Oilfield Const. Co., Inc. (La.App. 1986) 483 So.2d 212; Fidelity & Cas. Co.
of New York v. Gaedcke Equipment Co. (Tex.App. 1986) 716 S.W.2d 542; Rubenstein
Lumber Co. v. Aetna Life & Cas. Co. (Ill.App. 1984) 462 N.E.2d 660; Artco-Bell Corp. v.
Liberty-Mut. Ins. Co. (Tex.App. 1983) 649 S.W.2d 722; Arundale, Inc. v. Commercial
Union Ins. Co. (E.D.Mo. 1983) 572 F.Supp. 474.) This conclusion, while consistent with
the law in this state, does not resolve the question before us because “compensation and
other benefits” that may be awarded in a proceeding before the WCAB (as here) are distinct
from “damages” recoverable in a civil lawsuit (as in the cases cited by Industrial). (La
Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co., supra, 9 Cal.4th at pp. 36,
42.)
       Black’s Law Dictionary defines a benefit as an “[a]dvantage; profit; fruit; privilege;
gain; interest.… Benefits are something to advantage of, or profit to, recipient.” (Black’s
Law Dict. (6th ed. 1990) p. 158.) The term is broad enough to include all the elements of a
132a award, i.e., increased compensation, the costs of recovery, reinstatement, and back
wages and benefits, all of which redound to the advantage of a worker who suffers
discrimination at the hands of his or her employer as the result of a work-related injury.
       We find support for this conclusion in Burton v. Workers’ Comp. Appeals Bd.,
supra, 112 Cal.App.3d 85. The employee in Burton suffered a work-related injury for
which he recovered ordinary workers’ compensation benefits, including temporary
disability payments. The employer was also directed to pay a 50 percent increase in
compensation for discriminating against the employee in violation of section 132a. The
employer promptly paid the 132a award except for the portion based on the temporary
disability payments. As a result, the employer was then assessed a 10 percent penalty under
section 5814 for unreasonable delay or refusal to pay “compensation.” The issue in Burton
was whether the penalty should be assessed against the entire 132a award or only against the
part attributable to the unpaid temporary disability payments. In concluding the penalty
applied to the entire award, the court relied on Gallamore v. Workers’ Comp. Appeals Bd.

                                             75.
(1979) 23 Cal.3d 815, where the Supreme Court held a section 5814 penalty “is to be
computed by assessing 10 percent of the entire amount ultimately awarded for the
particular class of benefit which has been unreasonably delayed or withheld.” (Id. at p. 827,
italics added.) The Burton court held it is the 132a award, rather than the unpaid temporary
disability liability, that is the “class of benefit” to which this rule applies. As discussed
above, the court held the increased compensation provided by section 132a is
compensatory rather than punitive. First, it compensates the employee directly for damages
caused by the employer’s discriminatory conduct. The court explained: “This aspect of the
section 132a civil/administrative remedy clearly points to it being a separate ‘class of
benefit.’” (Burton v. Workers’ Comp. Appeals Bd., supra, 112 Cal.App.3d at p. 90.)
Moreover, a 132a award provides more nearly full compensation for the employee’s
injuries and other detriment.

       “In so providing more adequate compensation, the 50 percent increase does
       not seek to specifically more fully compensate individual classes of benefits
       but rather to increase compensation in general. This is supported by the
       language of section 4553 [then the measure of a 132a award] which specifies
       a 50 percent increase in ‘compensation otherwise recoverable’ rather than
       particular classes of benefits.” (112 Cal.App.3d at p. 91.)
       In summary, Burton found a 132a award, or at least the increased compensation
required by the statute, to be a “class of benefit” (and indeed a form of compensation) as
opposed to a penalty. Similarly, we believe it is entirely consistent with an insured’s
objectively reasonable expectations to interpret the phrase “compensation and other
benefits” under coverage A of the Industrial policy to include a 132a award, which is surely
an “other benefit” if not also a form of “compensation.”
                                5. The “Accident” Limitation
       The California amendatory endorsement to the standard form policy states in part:

       “With respect to Coverage A, Insuring Agreement IV, ‘Application of Policy’
       is amended to read as follows: [¶] This policy applies only to injury (1) by
       accident occurring during the policy period, or (2) by disease caused or


                                               76.
       aggravated by exposure during the policy period to conditions in the course
       of employment by the insured.” 34 (Italics added.)
       Industrial maintains the discharge of an employee in violation of section 132a
necessarily is an intentional act and therefore is excluded by this “accident” limitation.
And in a related argument, it contends coverage A also incorporates sections 533 of the
Insurance Code and 1668 of the Civil Code, both of which preclude coverage for willful
acts as a matter of public policy.35 We consider these two arguments together.
       Industrial cites us to a long list of insurance cases holding employment termination
is an intentional act. Although this conclusion would seem to require little additional
discussion, the context in which it was reached points up the difficulty in applying it here.
The issue in most of the cited cases was whether an insurer had a duty under a general
liability policy to defend an employer against a claim for bodily injury (i.e., emotional



34     We note part IV refers to an “injury” rather than to a “bodily injury” and we will
assume for purposes of this discussion, as the parties seem to do, that a discriminatory
discharge in violation of section 132a is an “injury.” It follows that a 132a violation, if it is
to be covered by the policy, must be an injury “by accident” as opposed to an injury by
disease.
35     Insurance Code section 533 provides: “An insurer is not liable for a loss caused by
the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of
the insured’s agents or others.”
        Civil Code section 1668 states: “All contracts which have for their object, directly
or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to
the person or property of another, or violation of law, whether willful or negligent, are
against the policy of the law.”
       It is not clear that Civil Code section 1668 applies to indemnity agreements such as
insurance policies. (See Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction
Co. (1991) 234 Cal.App.3d 1724, 1741.) Nor would its effect be any different than that of
Insurance Code section 533 if it were to apply. (Downey Venture v. LMI Ins. Co. (1998)
66 Cal.App.4th 478, 486, fn. 1.) In any case, as discussed below, neither Civil Code section
1668 nor Insurance Code section 533 applies to workers’ compensation insurance policies.
(Azevedo v. Abel (1968) 264 Cal.App.2d 451, 458.)




                                               77.
distress) resulting from wrongful termination. The policies generally limited coverage to
injuries caused by an “occurrence,” which in turn was defined as an “accident.” In addition,
the policies typically provided that the injury could have been “neither expected nor
intended from the standpoint of the insured.” That is, the policies looked both to the act
that caused the injury and to the actor’s state of mind. The specific question then was
whether an intentional act that resulted in unintended harm was an “occurrence.” The cases
uniformly held it was not because termination of employment is always an intentional act
and therefore cannot be an “accident.” There was no potential for coverage under the
policy, in other words, regardless of whether or not the employer expected or intended the
injury to occur. (Lipson v. Jordache Enterprises, Inc. (1992) 9 Cal.App.4th 151, 159;
Loyola Marymount University v. Hartford Accident & Indemnity Co. (1990) 219
Cal.App.3d 1217, 1224-1225 and cases cited therein.) Similarly, in Merced Mutual Ins.
Co. v. Mendez, supra, 213 Cal.App.3d 41, we held there was no duty under a comparably-
worded homeowner’s policy to defend or indemnify the insured for damages caused by his
intentional sexual acts. “[W]here the insured intended all of the acts that resulted in the
victim’s injury, the event may not be deemed an ‘accident’ merely because the insured did
not intend to cause injury.” (Id. at p. 50; see also Shell Oil Co. v. Winterthur Swiss Ins.
Co. (1993) 12 Cal.App.4th 715, 750-751.)
       Still other cases have addressed an insurer’s duty to defend a claim for wrongful
termination in light of the proscription in Insurance Code section 533 against coverage for
an insured’s willful acts. In Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, the
Supreme Court endorsed a “clear line of authority in this state to the effect that even an act
which is ‘intentional’ or ‘willful’ within the meaning of traditional tort principles will not
exonerate the insurer from liability under Insurance Code section 533 unless it is done with
a ‘preconceived design to inflict injury.’” (Id. at p. 887.) Appellate courts have since held
that an act, to be willful within the meaning of the statute, must have been undertaken not
only with the general intent to commit the act but also with the specific intent to cause

                                              78.
harm. (See B & E Convalescent Center v. State Compensation Ins. Fund (1992) 8
Cal.App.4th 78, 94; Republic Indemnity Co. v. Superior Court (1990) 224 Cal.App.3d
492, 501-502.) Thus, Insurance Code section 533 requires a different analysis than the
“occurrence” language discussed above because section 533 does not necessarily preclude
coverage for intentional acts that result in unintended harm. (Id. at p. 503; see also Shell
Oil Co. v. Winterthur Swiss Ins. Co., supra, 12 Cal.App.4th at pp. 739-743; United States
Fid. & Guar. Co. v. American Employer’s Ins. Co. (1984) 159 Cal.App.3d 277.)
       Both B & E Convalescent and Republic Indemnity concerned the right to a defense
under the employer’s liability part of a workers’ compensation and employer’s liability
policy. In Republic Indemnity, the claim was for employment discrimination under the
state Fair Employment and Housing Act (FEHA) based on a failure to take reasonable steps
to accommodate an employee with cancer. The employee was later terminated. The court
held Insurance Code section 533 did not preclude coverage, although termination is an
intentional act, because it is not necessary to show an intent to injure in order to prevail on
a “failure to reasonably accommodate” theory of discrimination. (Republic Indemnity Co.
v. Superior Court, supra, 224 Cal.App.3d at p. 503.)
       The underlying claim in B & E Convalescent alleged a supervisory employee had
been discharged for refusing to interfere with unionization efforts, and on account of her
gender, age, and ethnic origin. The court initially concluded the claim was not barred by the
exclusive remedy provisions of the workers’ compensation law because it was the sort of
claim, i.e., wrongful termination in violation of fundamental public policy, for which a
separate tort action lies. (B & E Convalescent Center v. State Compensation Ins. Fund,
supra, 8 Cal.App.4th at pp. 91-92, referring to Tameny v. Atlantic Richfield Co. (1980) 27
Cal.3d 167. See also Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083.) Turning then to
Insurance Code section 533, the court noted the Supreme Court had recently clarified its
decision in Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d 865. In J. C. Penney
Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, the court had explained: “Properly

                                              79.
understood, Clemmer … does not require a showing by the insurer of its insured’s
‘preconceived design to inflict harm’ when the insured seeks coverage for an intentional
and wrongful act if the harm is inherent in the act itself.” (Id. at p. 1025.) The B & E
Convalescent court held a Tameny termination is such an act, and one for which
indemnification therefore is barred by Insurance Code section 533. (B & E Convalescent
Center v. State Compensation Ins. Fund, supra, 8 Cal.App.4th at pp. 97-98.)
       There appears to be no real dispute in the present case, nor could there be, that
Melton’s discharge of Martin was a deliberate act. The parties disagree, however, on the
significance, if any, of Melton’s state of mind at the time. That is, Industrial, in reliance on
the “occurrence” cases cited above, maintains essentially that it is enough Melton acted
intentionally and thus it is immaterial whether or not he intended to harm Martin. Melton,
on the other hand, citing the Insurance Code section 533 cases, argues the policy precludes
coverage only if he acted with a “preconceived design to inflict injury,” which he denies
doing. In fact, the language of part IV does not lend itself easily to either interpretation. It
simply states: “This policy applies only to injury … by accident occurring during the
policy period .…” It is not clear from this language whether the act or the injury, or both,
must have been nonaccidental in order for the limitation to apply. But it might reasonably
be interpreted to mean that an intentional act is covered if it causes only unintended harm.
(See Olson v. American Bankers Ins. Co. (1994) 30 Cal.App.4th 816 [coverage for death
due to “bodily injury caused solely by an accident” is ambiguous as to whether it refers to
accidental means or unforeseen result].)
       In the case of a 132a violation, however, the act and the harm are essentially the
same thing. The statute prohibits discrimination against an employee who has suffered a
work-related injury. (Judson Steel Corp. v. Workers’ Comp. Appeals Bd., supra, 22
Cal.3d 658.) It does not require that the employee have sustained some additional injury as
a result of the discriminatory treatment. “Section 132a … addresses a breach of an
employee’s civil rights and applies regardless of whether that breach causes a medical

                                               80.
injury.” (City of Moorpark v. Superior Court, supra, 18 Cal.4th at p. 1154.) Here, the
WCJ expressly found that Melton fired Martin for having made known his intention to file a
workers’ compensation claim, and rejected as pretextual Melton’s argument, made again
here on appeal, that he was acting instead for legitimate business reasons. As the court
explained in B & E Convalescent in a similar context, “An affirmative act which can only
violate the law when it is accompanied by … an impermissible motivation necessarily
involves willful and intentional misconduct.” (B & E Convalescent Center v. State
Compensation Ins. Fund, supra, 8 Cal.App.4th at p. 95.)
       This is not to say that all acts or omissions in violation of section 132a are perforce
intentional. Discrimination may be unintentional when it stems from a failure to take
reasonable steps to accommodate a disabled worker (Republic Indemnity Co. v. Superior
Court, supra, 224 Cal.App.3d 492), or from the “disparate impact” of a facially neutral
employment policy. (Melugin v. Zurich Canada (1996) 50 Cal.App.4th 658, 665; Save
Mart Supermarkets v. Underwriters (N.D.Cal. 1994) 843 F.Supp. 597, 606). In County of
Santa Barbara v. Workers’ Comp. Appeals Bd. (1980) 109 Cal.App.3d 211, for example,
the application of a policy that automatically reclassified disabled workers into lower paid
positions was found to violate section 132a even though it was applied without regard to
whether the disability was work-related. (Id. at p. 215; see also Smith v. Workers’ Comp.
Appeals Bd. (1984) 152 Cal.App.3d 1104, 1110, fn. 5.) Similarly, in Judson Steel Corp.
v. Workers’ Comp. Appeals Bd., supra, 22 Cal.3d 658, a provision in a union contract
permitted (but did not require) the employer to terminate the seniority status of any
employee who had not worked for 12 consecutive months. The Supreme Court held
application of the provision violated section 132a when the employee had missed work due
to an industrial injury. (Id. at p. 669.) Here, by contrast, Melton’s discriminatory act, and
so the resulting harm, plainly were intentional.
       However, this conclusion does not resolve the issue before us because part IV of the
insuring agreement is ambiguous in another important respect. Although it purports to limit

                                             81.
coverage to accidental injuries, this is not always the case. As previously noted, where the
conditions of compensation concur, an employer is liable, regardless of fault, for the
compensation due under division 4 of the Labor Code for any injury sustained by an
employee arising out of and in the course of the employment. (§ 3600; see also § 3208
[defining “injury” to include “any injury or disease arising out of the employment .…”
(italics added)].) This includes intentional injuries. (Azevedo v. Industrial Acc. Com.
(1966) 243 Cal.App.2d 370, 374 (Azevedo I) [physical assault by employer].) As our
Supreme Court explained recently:

               “In a majority of jurisdictions, all or virtually all intentionally tortious
       acts committed by an employer against an employee in the course of
       employment are excluded from the workers’ compensation system.
       [Citation.] These jurisdictions typically have statutes that provide, or are
       construed as providing, that only ‘accidental’ workplace injuries are to be
       covered by workers’ compensation [citations] or have statutes that explicitly
       exclude intentional torts [citations]. Courts also rely on general public policy
       considerations to exclude intentional torts from the compensation
       systems.… Employees in these jurisdictions are therefore free to pursue
       civil actions against employers that engage in intentionally tortious conduct.

               “In California, the place of intentional torts in the workers’
       compensation system has been somewhat more complicated, for at least two
       reasons. First, the workers’ compensation exclusivity statute (§ 3600),
       which declares that ‘any injury ... arising out of and in the course of ...
       employment’ is covered by the Act, is unqualified by any reference to
       accident or intentional tort. Second, section 4553 provides that employees
       shall have their workers’ compensation awards ‘increased [by] one-half’ if the
       employee's injury results from the employer's ‘serious and willful
       misconduct.’ The Legislature, it would seem, has thereby evinced its intent
       to include at least some portion of what are classified as ‘intentional torts’
       within the workers’ compensation system.” (Fermino v. Fedco, Inc. (1994)
       7 Cal.4th 701, 709.)
       More particularly, disabling injuries resulting from employment termination are
compensable, and workers’ compensation provides the employee’s exclusive remedy
unless the discharge comes within an express or implied statutory exception, or it resulted
from a risk reasonably deemed to be outside the “compensation bargain.” (Shoemaker v.


                                               82.
Myers, supra, 52 Cal.3d 1, 7, 16; Cole v. Fair Oaks Fire Protection Dist. (1987) 43
Cal.3d 148, 160.) 36 If the injury arose out of and in the course of employment, the
exclusive remedy provisions apply “notwithstanding that the injury resulted from the
intentional conduct of the employer, and even though the employer’s conduct might be
characterized as egregious.” (Shoemaker v. Myers, supra, 52 Cal.3d at p. 15. See also
Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 752 [“[T]he proposition that
intentional or egregious employer conduct is necessarily outside the scope of the workers’
compensation scheme is erroneous.”].) Indeed, the exclusive remedy provisions bar a
discharged employee’s civil claim for emotional distress even in the absence of any
compensable physical disability. (Id. at p. 754.) However, the workers’ compensation law
does not preempt a common law action for wrongful termination in violation of public
policy, e.g., one based on sexual or racial discrimination, because such misconduct is not a
normal part of the employment relationship. (Gantt v. Sentry Insurance, supra, 1 Cal.4th
at p. 1100.) Likewise, a section 132a violation falls outside the compensation bargain, and




36     Section 4553 normally provides an employee’s exclusive remedy when a work-
related injury is caused by the employer’s intentional or reckless misconduct.

               “… Cole and Johns-Manville [Johns-Manville Products Corp. v.
       Superior Court (1980) 27 Cal.3d 465] contemplated a tripartite system for
       classifying injuries arising in the course of employment. First, there are
       injuries caused by employer negligence or without employer fault that are
       compensated at the normal rate under the workers’ compensation system.
       Second, there are injuries caused by ordinary employer conduct that
       intentionally, knowingly or recklessly harms an employee, for which the
       employee may be entitled to extra compensation under section 4553. Third,
       there are certain types of intentional employer conduct which bring the
       employer beyond the boundaries of the compensation bargain, for which a
       civil action may be brought.” (Fermino v. Fedco, Inc., supra, 7 Cal.4th at pp.
       713-714.)




                                             83.
workers’ compensation does not provide the employee’s exclusive remedy. (City of
Moorpark v. Superior Court, supra, 18 Cal.4th 1143, 1161.)
       It is because some intentional workplace injuries are compensable under the
workers’ compensation system, and because an employer is required to “secure the
payment of compensation” by purchasing insurance against its liability for those injuries
(§ 3700), that sections 533 of the Insurance Code and 1668 of the Civil Code do not apply
to workers’ compensation policies. Subject to approval by the Insurance Commissioner, a
workers’ compensation policy may restrict or limit liability insurance “in any manner
whatsoever.” (Ins. Code, §§ 11657-11660.) However,

       “The authority for restrictions or exclusions in individual policies does not
       permit gaps in the coverage of the employer's ordinary liability for disability
       payments and medical expenses. The work[ers’] compensation law demands
       security for this ordinary liability in advance of injury. It does not pretermit
       this demand in the case of perils caused by the employer's willful tort. There
       is, then, a surface conflict between the compensation law’s demand for
       secured compensation and the statutory policy against insurance for willful
       torts.

               “The conflict disappears in the light of additional statutes. Labor
       Code section 4553 directs that the work[ers’] compensation otherwise
       recoverable shall be increased one-half when the employee is injured by the
       employer's serious and willful misconduct, while Insurance Code section
       11661 prohibits insurance covering this additional compensation. The award
       for serious and willful misconduct represents additional compensation over
       and above what we have termed the employer's ‘ordinary liability’ for
       disability and medical expenses; each of the two awards represents a different
       kind of liability; that for serious and willful misconduct has the
       characteristics of a penalty superimposed upon the standard scale of
       payments. If, as [the insurer] contends, Insurance Code section 533 and Civil
       Code section 1668 apply to work[ers’] compensation liability, they overlay
       both ordinary compensation and the additional compensation for serious and
       willful misconduct. Given that scope, these provisions would deprive section




                                             84.
       11661 of useful function.[37] The latter is a specialized expression of the
       same public policy expressed by the other two statutes, but evolved for the
       particular purposes of work[ers’] compensation coverage. The employer's
       inability to insure himself against liability for serious and willful misconduct
       amply fulfills the public policy banning insurance which tends to encourage
       willful injury. The public policy does not stand in need of additional support.
       For the purpose of the work[ers’] compensation system, Insurance Code
       section 11661 serves as sole spokesman of the public policy. Section 533 of
       the Insurance Code and section 1668 of the Civil Code do not apply to
       work[ers’] compensation insurance coverage and do not prohibit insurance
       against the employer's ordinary liability for disability compensation and
       medical expense, even when occasioned by his willful wrong.” (Azevedo v.
       Abel, supra, 264 Cal.App.2d at pp. 457-458 (Azevedo II), fns. omitted.)
       When Azevedo II was decided in 1968, section 132a contained no provision for the
payment of additional compensation; it simply made it a misdemeanor for an employer to
discriminate against an employee because the employee had filed or made known his or her
intention to file a workers’ compensation claim. (Stats. 1965, ch. 1513, § 36, p. 3562.)
That is, only section 4553 at the time imposed a compensation “penalty,” as distinct from
“ordinary liability,” for an employer’s willful misconduct.
       Section 132a was repealed in 1972 and replaced with a new version providing, in
addition to criminal sanctions, that an employer who violated the statute was subject to
section 4553. (Stats. 1972, ch. 874, § 1, p. 1545.) As previously noted , section 132a was
amended again in 1982 to eliminate this reference to section 4553 while at the same time


37     This conclusion may not be entirely accurate because section 4553 appears to apply
to a wider range of nonaccidental conduct than do sections 533 of the Insurance Code and
1668 of the Civil Code. The “legislative ambiguity” regarding the place of intentional torts
in the workers’ compensation system “is compounded by case law construing section 4553,
which suggests that the concept of ‘serious and willful misconduct’ is not completely
congruent with that of intentional common law tort. Rather, ‘serious and willful
misconduct’ has been viewed, as one court expressed it, as an intermediate form of
wrongdoing falling somewhere ‘between ordinary negligence and an intentional act.’”
(Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 710, quoting Magliulo v. Superior Court
(1975) 47 Cal.App.3d 760, 779.)




                                             85.
incorporating its provisions for the payment of additional compensation. Consequently, in
the present circumstances, unlike those in Azevedo II, section 4553 and Insurance Code
section 11661 do not work to resolve the “surface conflict between the compensation
law’s demand for secured compensation and the statutory policy against insurance for
willful torts.” This is so because Insurance Code section 11661 does not apply by way of
section 4553 to prohibit insurance against an employer’s 132a liability for additional
compensation. It is true as well because the requirement an employer secure the payment
of “compensation” (§ 3700) refers to the compensation due under division 4 of the Labor
Code (§ 3207), which does not include section 132a. An employer is neither required to
secure the payment of any additional compensation due under section 132a, nor expressly
prohibited from doing so.
       Nonetheless, the rationale underlying the decision in Azevedo II still applies with
equal force in the present situation. If sections 533 of the Insurance Code and 1668 of the
Civil Code were to apply to workers’ compensation insurance, they would bar coverage for
all intentional workplace injuries, including those that are compensable under the law,
notwithstanding the requirement that an employer insure itself against its liability for
compensation. The accident limitation in part IV of the policy, if it were strictly applied,
would have the same effect. An employer who had such a policy, and no more, would be in
violation of the workers’ compensation law.
       Industrial all but concedes in its supplemental briefing that the accident limitation
does not always mean what it says.38 Industrial acknowledges, based on Azevedo II, that the


38     Industrial argues in its supplemental briefing that coverage under its policy for
intentional workplace injuries is not an issue in this case because there is no allegation,
much less any evidence, that Martin’s fall from the ladder was anything other than an
accident. This argument misses the point. The question here is whether part IV of the
insuring agreements is ambiguous with regard to coverage for an employer’s 132a liability
because it purports to exclude many nonaccidental medical injuries that actually are



                                              86.
limitation does not exclude coverage for an employer’s “ordinary liability” for
compensation for intentional workplace injuries, in which case it says the limitation is
“simply superceded by the provisions of the law” that are incorporated into the policy. It is
perhaps more accurate to say the accident limitation, to the extent it is more restrictive than
the law allows, is unenforceable. (See Howell v. State Farm Fire & Casualty Co. (1990)
218 Cal.App.3d 1446, 1453-1454.) Industrial nevertheless insists that the limitation, as
well as the two statutory public policy exclusions,39 continue to foreclose coverage for an
employer’s 132a liability because it is not a form of “ordinary liability.” The problem with
this argument is that nothing in the insurance policy or the law clearly distinguishes
between an employer’s “ordinary liability” for medical injuries and its “nonordinary”
liability for section 132a discrimination.
       The employee in Azevedo II did not seek the additional compensation “penalty”
authorized by section 4553 for an employer’s serious and willful misconduct. But if she
had, as the court made clear in the passage quoted above, coverage for the employer’s
liability for the additional compensation would have been barred by the express terms of
Insurance Code section 11661. For the reasons discussed above, the same statute might
also have barred coverage for an employer’s liability for additional compensation under
section 132a between the time section 132a was reenacted in 1972 and the time it was




covered, and it does not clearly distinguish between the employer’s liability for these
covered injuries and its liability under section 132a.
39     Industrial’s assertion Insurance Code section 533 has been applied to workers’
compensation and employer’s liability policies is misleadingly incomplete. It cites two
cases which applied only the employer’s liability portion, not the workers’ compensation
portion. (See B & E Convalescent Center v. State Compensation Ins. Fund, supra, 8
Cal.App.4th at p. 92 and Transport Indemnity Co. v. Aerojet General Corp. (1988) 202
Cal.App.3d 1184, 1186.)




                                             87.
amended in 1982 to delete the reference to section 4553.40 But following the 1982
amendment, there was no statutory prohibition, either direct or indirect, against coverage
for an employer’s 132a liability.
       Nor does the policy itself differentiate between an employer’s “ordinary liability”
and its 132a liability. By contrast, the amendatory endorsement specifically excludes
coverage for an employer’s liability for the additional compensation due under section
4553.41 There is no comparable exclusion for the employer’s section 132a liability.
       Industrial’s position comes down to an argument that Melton should have known the
workers’ compensation law does not, in the words of Azevedo II, “pretermit this demand [to
secure the payment of compensation] in the case of perils caused by the employer's willful
tort.” (264 Cal.App.2d at p. 457.) Put a different way, Industrial would ascribe to Melton
the knowledge that part IV of the insuring agreement was meant to apply only to his 132a
liability, and not to his “ordinary liability” for intentional injuries, even though neither the
policy nor the law makes any such distinction. This argument supposes a level of legal
sophistication not even Industrial demonstrated at the time.




40    As noted, it was the 1982 amendment to section 132a that first gave rise to the
“potential coverage dispute” in this case.
41     The endorsement states:
       “This policy does not apply to liability for additional compensation imposed
       on the insured under Sections 4553 and 4557, Division IV, Labor Code of the
       State of California, by reason of the serious and wilful misconduct of the
       insured or any representative of the insured or by reason of injury to an
       employee under sixteen years of age and illegally employed at the time of the
       injury.”
Notably, Insurance Code section 11661 prohibits insurance only against an employer’s
liability for the additional compensation due under section 4553, not against its liability
for the injuries caused by the employer’s serious and willful misconduct.




                                               88.
       We must read the policy “as a layman would read it and not as it might be analyzed
by an attorney or an insurance expert.” (Crane v. State Farm Fire & Cas. Co. (1971) 5
Cal.3d 112,115.) “Even if a provision raises doubts as to coverage in the minds of legally
trained observers due to a sophisticated legal distinction, courts will not assume the
distinction was incorporated into the policy.” (Vandenberg v. Superior Court (1999) 21
Cal.4th 815, 840.) “An exclusionary clause ‘must be conspicuous, plain and clear.’” (De
May v. Interinsurance Exchange (1995) 32 Cal.App.4th 1133, 1137.) “[A]n exclusion or
limitation on coverage must be clearly stated and will be strictly construed against the
insurer. If an exclusion ambiguously lends itself to two or more reasonable constructions,
the ambiguity will be resolved against the insurer and in favor of coverage.” (Smith Kandal
Real Estate v. Continental Casualty Co. (1998) 67 Cal.App.4th 406, 414.)
       Section 132a is “quite different” from other workers’ compensation remedies and
need not necessarily be treated the same. (City of Moorpark v. Superior Court, supra, 18
Cal.4th at p. 1154.) But what distinguishes section 132a from the others is not intentional
conduct. Industrial, in effect, would have us read a statutory coverage exclusion into the
preamble to section 132a, which provides: “It is the declared policy of this state that there
should not be discrimination against workers who are injured in the course and scope of
their employment.” Certainly this policy would be advanced by prohibiting an employer
from insuring itself against its liability for discriminatory conduct. And indeed it appears
Insurance Code section 11661 may have served this purpose prior to the amendment of
section 132a in 1982. Notably, however, the Legislature did not amend Insurance Code
section 11661 at the same time or enact a comparable statute making section 132a liability
uninsurable.




                                             89.
       Moreover, this is not a case where Industrial attempted to limit its exclusion, as it
could have, to an employer’s discriminatory conduct in violation of section 132a.42 Instead
the policy purports to exclude coverage for all nonaccidental workplace injuries, ordinary
or nonordinary, when in fact the former generally are covered. Part IV of the insuring
agreement, insofar as it seeks to restrict coverage to accidental injuries, is honored in the
breach far more than the observance. In this respect the accident limitation is not merely
ambiguous but practically meaningless.
       Notwithstanding this ambiguity, we must determine whether, in the context of the
entire policy and under the circumstances of this case, coverage for an employer’s 132a
liability is consistent with the insured’s “objectively reasonable expectations.” (Bank of
the West v. Superior Court, supra, 2 Cal.4th at p. 1265.) Language in an insurance policy
cannot be found to be “ambiguous in the abstract.” (Ibid.) Therefore, it is necessary to
consider whether an employer’s 132a liability for discrimination is different enough from
its “ordinary liability” for medical injuries that an employer could not reasonably expect
coverage for the former. We believe it is not so different for the reasons we have already
discussed. First, the two types of liability are not distinguished one from the other by
intentional conduct; an employer’s ordinary liability for nonaccidental injuries is covered
under the policy notwithstanding the accident limitation. Second, although the two types of


42      Melton observes that Industrial, in the year after his policy expired, substantially
revised its standard form policy to add, among other things, a provision expressly making
the insured responsible for payments due as the result of discrimination in violation of the
workers’ compensation law. He cites this “drafting history” as an acknowledgement by
Industrial that its previous policy (with Melton) covered an employer’s 132a liability, or at
least that the earlier policy was ambiguous in this respect. While the drafting history of a
standard form policy may be of assistance in deciding coverage issues (Montrose Chemical
Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 670-671), subsequent policy revisions
are not probative of the parties’ mutual intention at the time the policy was made. (See
McKee v. State Farm Fire & Cas. Co. (1983) 145 Cal.App.3d 772, 777-778.)




                                              90.
liability arise from different sorts of injuries, if an employee were to suffer a medical
injury as the result of the employer’s discriminatory conduct, the employer’s liability for
this injury presumably would be covered under the policy. That is, a 132a violation can give
rise to both kinds of liability. Finally, while a section 132a award has some of the
characteristics of a penalty, it is also compensatory in the manner of ordinary workers’
compensation benefits. Therefore, we cannot say as a matter of law it was unreasonable for
Melton to expect coverage under this policy for his section 132a liability.
       In summary, we conclude the accident limitation is ambiguous because it fails to
clearly distinguish between what it is arguably meant to exclude, i.e., an employer’s 132a
liability, and what it purports to exclude but does not, i.e., an employer’s ordinary liability
for nonaccidental workplace injuries. Accordingly, we resolve the ambiguity against
Industrial and in favor of coverage. (Smith Kandal Real Estate v. Continental Casualty
Co., supra, 67 Cal.App.4th at p. 414.)
                         6. Discharge Outside the Policy Period
       Martin was injured on April 24 and discharged by Melton on August 21 of 1984.
Sierra Signs’s policy with Industrial expired on August 1, 1984, after which the business
was insured by a different company. Thus, Martin’s injury occurred during Industrial’s
policy period but his discharge did not. Part IV of the policy’s insuring agreements
provides in part: “This policy applies only to injury (1) by accident occurring during the
policy period .…” Industrial maintains that the operative date for determining coverage for
Melton’s 132a liability is the date Martin was fired rather than the date of the event that
caused him to be fired, i.e., the date he was injured or the date he first made known his
intention to file a workers’ compensation claim based on the injury. On this premise,
Industrial argues Melton’s 132a liability was not covered under the policy (even if it
otherwise might have been). Assuming, without deciding, the premise is correct, we
conclude Industrial is estopped to deny coverage on this basis.



                                              91.
       The record leaves some question as to whether the trial court relied on the policy
period provision to reach its conclusion there was no coverage for Melton’s 132a liability.
In announcing its coverage ruling the court said:

       “… the Court finds and determines that the firing of Martin by plaintiff Mr.
       Melton is not an accident within the meaning of the policy nor is Mr.
       Melton’s discrimination against Mr. Martin under Labor Code Section 132a
       and that is the basis of the Court’s ruling or I should say that that alone is
       enough to convince the Court that there’s no – no coverage. However, I do
       believe that Insurance Code 553 [sic] and Civil Code Section 1668 do have
       some application inspite [sic] of Azevedo versus Abel because I think we are
       talking about something more than ordinary compensation benefits which
       were at issue in that case. There’s also as another basis or bases that it was
       [not] within the policy period, although I believe the plaintiff will contend that
       there is an estoppel there. But nonetheless the termination took place I
       believe it was August 21st, 1984 and the policy ran to August 1st, 1984.”
The court subsequently instructed the jury it had found there was no coverage on the first
two of these three grounds, i.e., the accident limitation and the two public policy statutes.
       The court ruled Industrial was not estopped to assert its coverage defenses (meaning
presumably its accident limitation and public policy defenses) because Melton was aware of
Industrial’s no-coverage position notwithstanding the company’s failure to send him a 132a
letter, and because Melton therefore had not detrimentally relied on a belief Industrial
would indemnify him against a 132a award. However, the court left it to the jury to decide
whether Industrial had impliedly waived its right to deny coverage by “conduct[ing] itself in
a way that was so inconsistent with an intent to enforce its right to deny coverage under the
policies [sic] so as to induce a reasonable belief that Industrial Indemnity had relinquished
such right.” In this regard it also instructed the jury that when an insurance company relies
on specific grounds to deny coverage, it waives its right to rely in subsequent litigation on
any other grounds a reasonable investigation would have uncovered.
       Because the doctrines of waiver and estoppel have played such a significant role in
this case, and because they are so often confused with one another (as they were here), we



                                              92.
will consider Industrial’s final no-coverage argument after examining the two doctrines in
greater detail.
         [The following section (part IIIB) is to be published.]*
                                    B. Waiver and Estoppel
         The issues of waiver and estoppel typically arise in insurance cases when the
existence of coverage under a policy turns on the resolution of disputed factual questions
underlying a third party claim against the insured. In this situation, where the potential for
coverage exists, the insurer is obligated to provide a defense but may reserve its right to
refuse to indemnify the insured against an eventual judgment, or to withdraw from the
defense prior to judgment, on the ground the claim is not covered under the policy. An
insurer who provides a defense without a reservation of rights, however, may thereby waive,
or be estopped to assert, its coverage defenses. (See Croskey et al., Cal. Practice Guide:
Insurance Litigation, supra, ¶ 7:709 et seq., p. 7B-58.1.)

         “‘[I]f a liability insurer, with knowledge of a ground of forfeiture or
         noncoverage under the policy, assumes and conducts the defense of an action
         brought against the insured, without disclaiming liability and giving notice of
         its reservation of rights, it is thereafter precluded in an action upon the policy
         from setting up such ground of forfeiture or noncoverage. In other words, the
         insurer’s unconditional defense of an action brought against its insured
         constitutes a waiver of the terms of the policy and an estoppel of the insurer
         to assert such grounds.’” (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d
         739, 755.)
“The insurer’s undertaking defense of the third party suit creates a high potential for
misleading the insured, by creating the impression the insurer is not disputing coverage.
And, the insured may rely thereon by failing to retain independent counsel to negotiate or




*   See footnote, ante, page 1.




                                                93.
defend the action.” (Croskey et al., Cal. Practice Guide: Insurance Litigation, supra,
7:712, p. 7B-59.)
       Similarly, when an insurer limits its reservation of rights to certain grounds, it
thereby “waives” its right to contest coverage on any other grounds of which it was, or
should have been, aware. (Canadian Ins. Co. v. Rusty’s Island Chip Co. (1995) 36
Cal.App.4th 491, 497-498; Alta Cal. Regional Center v. Fremont Indemnity Co. (1994)
25 Cal.App.4th 455, 463- 465.) “Application of the waiver rule to disputes over whether
coverage exists is designed as an incentive to compel an insurance company to fulfill its
duty to thoroughly investigate a claim before denying coverage.” (Alta Cal. Regional
Center at p. 465.) In fact, however, this “waiver rule” is grounded in the doctrine of
equitable estoppel inasmuch as it also generally requires a showing of detrimental reliance
on the part of the insured. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at pp.
31-34 [rejecting the “automatic waiver” rule in such circumstances and disapproving Alta
Cal. Regional Center to the extent it relied on the rule].)
       Thus, although courts often speak in terms of waiver, the principle most commonly
at work in insurance cases derives from the doctrine of equitable estoppel.

               “‘Although the terms “waiver” and “estoppel” are sometimes used
       indiscriminately, especially in the law of insurance, they are two distinct and
       different doctrines that rest on different legal principles. Strictly speaking,
       “waiver” is used to designate the act, or the consequences of the act, of one
       side only, while “estoppel” is applicable where the conduct of one side has
       induced the other to take such a position that it would be injured if the first
       should be permitted to repudiate its acts.’ [Citations.]” (Insurance Co. of
       the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1320,
       fn. 6 (disapproved on other grounds in Vandenberg v. Superior Court,
       supra, 21 Cal.4th at p. 841, fn. 13, and Buss v. Superior Court (1997) 16
       Cal.4th 35, 50, fn. 12.)
       Waiver is the voluntary relinquishment of a known right and looks solely to the
intent of the waiving party. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p.
31.) It does not require any act or conduct by the other party. (DRG/Beverly Hills, Ltd. v.



                                              94.
Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59.) “The waiver
may be either express, based on the words of the waiving party, or implied, based on
conduct indicating an intent to relinquish the right.” (Waller v. Truck Ins. Exchange, Inc.,
supra, 11 Cal.4th at p. 31.) An insurer can “waive” policy provisions that would otherwise
defeat coverage. (Miller v. Elite Ins. Co., supra, 100 Cal.App.3d at p. 754.)

               “To constitute a waiver there must be an existing right, a knowledge of
       its existence, and an actual intention to relinquish it, or such conduct as
       warrants an inference of the relinquishment. It is a voluntary act and implies
       an abandonment of a right or privilege--an election to dispense with
       something of value or to forego some advantage which one might, at his
       option, have demanded or insisted upon.” (McDanels v. General Ins. Co.
       (1934) 1 Cal.App.2d 454, 460.)
       Equitable estoppel, on the other hand, looks both to the statements or conduct of the
party to be estopped and to the actions of the other party taken in reliance thereon. “The
object of equitable estoppel is to ‘prevent a person from asserting a right which has come
into existence by contract, statute or other rule of law where, because of his conduct,
silence or omission, it would be unconscionable to allow him to do so.’ [Citation.]”
(Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 891.)
       An equitable estoppel normally has four elements: (1) the party to be estopped must
have known the true facts; (2) he must have intended that his conduct be acted upon, or must
have acted in such a manner that the party asserting the estoppel had a right to believe the
conduct was so intended; (3) the party asserting the estoppel must have been ignorant of the
true facts; and (4) the party asserting the estoppel must have relied on the conduct to his
detriment. (Insurance Co. of the West v. Haralambos Beverage Co., supra, 195
Cal.App.3d at p. 1321; Miller v. Elite Ins. Co., supra, 100 Cal.App.3d at p. 754. See also
Evid. Code, § 623.)
       The party to be estopped need not have acted with actual fraudulent intent in order
for an estoppel to arise. “Negligence that is careless and culpable conduct is, as a matter of
law, equivalent to an intent to deceive and will satisfy the element of fraud necessary to an


                                              95.
estoppel.” (Crestline Mobile Homes Mfg. Co. v. Pacific Finance Corp. (1960) 54 Cal.2d
773, 778-779.) An estoppel may arise from silence where there is a duty to speak.
(Skulnick v. Roberts Express, Inc., supra, 2 Cal.App.4th at p. 891.)
       Ordinarily, an estoppel cannot create coverage under an insurance policy where such
coverage did not originally exist. (Miller v. Elite Ins. Co., supra, 100 Cal.App.3d at p.
755.) “‘“The rule is well established that the doctrines of implied waiver and of estoppel,
based upon the conduct or action of the insurer, are not available to bring within the
coverage of a policy risks not covered by its terms, or risks expressly excluded
therefrom .…”’” (Aetna Casualty & Surety Co. v. Richmond (1977) 76 Cal.App.3d 645,
653, citing Insurance Co. of North America v. Atlantic National Ins. Co. (4th Cir. 1964)
329 F.2d 769, 775.) However, an equally well-established exception to this general rule
applies where the insurer, although aware of a ground of noncoverage, defends an action
against its insured without reserving its right to disclaim liability. (Miller v. Elite Ins. Co.,
supra, 100 Cal.App.3d at p. 755, citing Insurance Co. of North America v. Atlantic
National Ins. Co., supra, 329 F.2d at pp. 775-776.) “An insurer can be estopped from
raising coverage defenses if, knowing of the grounds of noncoverage, it provides a defense
under the policy without a reservation of rights, and the insured reasonably relies on this
apparently unconditional defense to his detriment.” (State Farm Fire & Casualty Co. v.
Jioras (1994) 24 Cal.App.4th 1619, 1626.)
       The existence of an estoppel is a nonjury fact question to be determined by the trial
court. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd., supra, 30
Cal.App.4th at p. 61.)
       Turning to the present case, we note that at no time between the filing of Martin’s
132a petition in 1985 and Melton’s bad faith action in 1989 did anyone from Industrial,
either directly or through Yrulegui, ever tell Melton his 132a liability was not covered by
his workers’ compensation policy because Martin was fired after the policy’s expiration.
Indeed, until Rossi’s letter in 1988, Industrial never gave Melton any reason at all for its

                                               96.
denial of coverage. And within Industrial itself, the rationale for its coverage position
underwent several changes during this same period.
       Normally Industrial’s reasons would have been provided by a 132a letter. None, of
course, was sent in this case. However, in two separate telephone conversations on August
26, 1985, shortly after Martin filed his 132a petition, Valerie Souza and Richard Yrulegui
each reportedly told Melton he would be personally liable for an award if Martin were to
prevail on his discrimination claim. Neither used the term “coverage” nor did either
explain the basis for Industrial’s no-coverage position. This position presumably was the
same as the one set out in Industrial’s sample 132a letter, which disclaimed coverage on
only two grounds: the policy applied only to events resulting in bodily injury, and Insurance
Code section 533 barred coverage for willful acts, including discrimination.43 Notably, the
letter did not rely either on the policy’s coverage clause (“all compensation and other




43     The sample 132a letter stated:

       “Your policy of insurance with this company, under insuring agreements,
       reads:

       “‘IV. Application of Policy

       “‘This policy applies only to injury (1) by accident—, or (2) by disease—.’

       “Thus, we do not provide insurance coverage under your policy for events
       which do not result in bodily injury.…”

However, part IV plainly does not limit coverage to bodily injury.
       Moreover, as discussed above, then-existing case law held Insurance Code section
533 did not apply to workers’ compensation insurance. (Azevedo v. Abel, supra, 264
Cal.App.2d at p. 458; see also Shell Oil Co. v. Winterthur Swiss Ins. Co., supra, 12
Cal.App.4th at p. 741 [restating Azevedo’s conclusion].) Thus, Industrial’s internal
coverage position rested on a tenuous legal foundation.




                                             97.
benefits required of the insured by the workers’ compensation law”) or on the “accident”
limitation.
       More to the point, neither Souza nor Yrulegui denied coverage on the ground the
policy had lapsed. There is no question Souza was aware of the relevant dates: initially she
had denied Martin’s injury claim because the doctor’s report mistakenly listed the date of
injury as August 3, 1984, three days beyond the policy period; and Martin’s 132a petition
alleged he was fired “on or about August 20, 1984,” well after the policy had expired.
       Andre Hassid, the manager of Industrial’s claims counsel department, would later
explain it was Industrial’s policy to provide a courtesy defense in 132a cases based on the
date of an employee’s industrial injury, rather than on the date of the discriminatory act
giving rise to the 132a claim. If so, the potential for confusion from this policy is evident:
by providing a defense, Industrial not only might create the impression it was accepting
coverage, but might also cause the insured as a result to avoid tendering its defense to the
subsequent carrier. In this situation, Industrial was obligated to tell Melton his policy had
expired if it intended to rely on that ground to deny coverage. Since the operative date for
purposes of coverage might have been either the date of injury or the date of discharge,
Industrial’s blanket denial of coverage was not enough to alert Melton to Industrial’s
position on the subject.
       But we need not decide whether Industrial’s initial failure to specify reasons for
denying coverage was sufficient in itself to create an estoppel. Industrial’s posture in the
case changed significantly late in 1986 after Yrulegui attended a workers’ compensation
seminar where he learned for the first time of a legal argument in favor of coverage for an
employer’s 132a liability. As a result, Yrulegui told Melton there was now a “potential
coverage dispute” and his 132a liability might in fact be covered under his policy with
Industrial. Industrial also agreed to pay for Cumis counsel and authorized Yrulegui to begin
settlement negotiations with Martin. All these actions clearly were inconsistent with the
position there was no coverage due to the policy’s expiration.

                                              98.
       As discussed above, the coverage argument stemmed from a 1982 change in section
132a that removed a reference to section 4553 (the serious and willful misconduct statute).
The net effect of the change, the argument went, was that a workers’ compensation insurer
was no longer prohibited by section 11661 of the Insurance Code from insuring against an
employer’s section 132a liability. Thus, the employer’s liability would be covered unless
the policy itself or some other statutory provision excluded it. It is curious, then, that
Industrial acknowledged the possibility of coverage under this new theory because up until
then it had taken the position, internally at least, that the policy language (allegedly
restricting coverage to bodily injury) and Insurance Code section 533 (precluding coverage
for willful acts) both served this specific exclusionary purpose. In other words, the new
“coverage argument” really only eliminated a possible statutory exclusion upon which
Industrial had never relied to deny coverage in the first place, and which therefore did not
require Industrial to reevaluate its coverage position.
       Industrial’s change of position was not limited to discussions within the company.
Yrulegui testified he explained the new coverage argument to Mitchell “very thoroughly.”
And Mitchell testified he understood the argument related to the lack of a specific
provision in the policy excluding coverage for an employer’s 132a liability. Thus, by
altering its position and acknowledging the possibility of coverage, Industrial arguably
created the impression it was not asserting such an exclusion existed. In these
circumstances, the fact Martin had been discharged after the policy’s expiration took on
greater significance because it provided Industrial with a legal basis to deny coverage
irrespective of the new coverage theory.
       Even though coverage was now in question, Industrial did not disclaim responsibility
for Melton’s 132a liability for this reason, or any other. Rather, it continued to provide a
defense without taking a formal coverage position or explicitly reserving its rights to
disclaim coverage. Industrial contends that its agreement to provide Melton with Cumis
counsel was a “sufficient substitute” for a reservation of rights because it put Melton on

                                               99.
notice of a coverage dispute. Certainly it would have made little sense for Industrial to pay
for Cumis counsel if it were accepting coverage outright but, as noted, the rest of
Industrial’s position with regard to Cumis counsel was confusing at best.44


44      Not every conflict of interest requires an insurer to provide independent counsel for
its insured. (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372,
1394.) The mere fact that the insurer disputes coverage, for example, does not entitle the
insured to Cumis counsel. (Ibid.) However, independent counsel is necessary in the
“paradigm case” where resolution of the coverage issue turns on the insured’s conduct, and
the same conduct is at issue in the underlying third party lawsuit. (Id. at p. 1395; San Diego
Federal Credit Union v. Cumis Ins. Society, Inc., supra, 162 Cal.App.3d at pp. 364-365;
Civ. Code, § 2860, subd. (b).) In other words, a Cumis situation arises when common
counsel’s handling of the liability issue can affect the outcome of the disputed coverage
issue. (Blanchard v. State Farm Fire & Casualty Co. (1991) 2 Cal.App.4th 345, 350.)
Thus, if Yrulegui believed the possibility of coverage required Industrial to furnish
independent counsel, it follows Mitchell should have been hired to defend Melton with
regard to whether or not he violated section 132a in the first place. The same would be true
if Yrulegui were concerned, as he said, about the appearance of a conflict based on his close
association with Industrial. In fact, however, Mitchell was retained as to coverage only and
Yrulegui continued to represent Melton on the matter of his 132a liability.
         The need for independent counsel also supposes the insurer has an interest in the
proceeding inasmuch as it may be required to pay an eventual judgment against its insured.
Thus, Industrial’s acknowledgement of a Cumis situation was inconsistent with its position
that it had no stake in and was not a party to the 132a hearing, and added to the confusion
about who Yrulegui was representing from that point forward. Normally, had this truly been
a Cumis situation, Industrial typically would have been represented by Yrulegui (or
someone else), and Melton by Cumis counsel. In actuality, this probably was not a Cumis
situation because resolution of the coverage issue turned not on any factual question but on
two legal ones: the meaning of language in part IV of the policy, and the application of
Insurance Code section 533. The two factual issues at the 132a hearing--whether Martin
suffered an industrial injury and whether Melton fired Martin for that reason--went to
Melton’s liability rather than to coverage.
       In this regard, the court instructed:
       “A party is only entitled to independent or so-called ‘Cumis’ counsel if the insurer
has reserved its rights on a given coverage issue (rather than having denied coverage) and
counsel retained by the insurer could, through the handling of the litigation against the
insured, possibly affect the outcome of that coverage issue.”




                                               100.
       Moreover, many of Industrial’s other actions were inconsistent with the view it was
denying coverage. Most notably, Industrial attempted, initially without consulting Melton,
to settle the case with its own money.45 And it continued to represent to Melton it was
making efforts to settle even after it had made the decision to stop for fear of giving “more
argument Mitchell will use to make us pay if [we] lose.” In addition, Yrulegui expressed the
opinion to Mitchell that Industrial would pay some, if not all, of a 132a award. Rossi later
confirmed Industrial’s willingness to contribute money toward the award, even after he sent
Melton a letter in 1988 denying coverage. And Industrial passed up the opportunity to
adjudicate the issue of coverage at the 132a hearing, a few months after the issue arose,
even though Yrulegui appeared at the hearing on Industrial’s behalf.
       It is useful to point out again in this connection that Industrial’s coverage position
was not dependent on the resolution of disputed factual issues at the upcoming 132a
hearing. It turned instead on purely legal questions involving policy interpretation and
application of certain statutory provisions. In short, there was nothing to prevent Industrial
from taking a position as soon as the “potential coverage dispute” arose. The only
reasonable conclusion to be drawn from Industrial’s actions between the time Yrulegui
returned from the seminar in 1986 until Rossi sent a no-coverage letter in 1988 is that
Industrial, to the extent it gave the matter much thought, was hoping to resolve Martin’s
132a claim without having to test its position. This would have been in keeping with its
practice in the usual case where a 132a petition is filed concurrently with an injury claim,
i.e., to “settle” the 132a claim without appearing to acknowledge coverage.




45      An attempt by an insurer to settle a claim against its insured, like the establishment
of a reserve fund, is some indication the insured believes it had a duty to defend against the
claim. (Miller v. Elite Ins. Co., supra, 100 Cal.App.3d 739, 753.)




                                             101.
       In all material respects, Dennis Rossi’s April 5, 1988, no-coverage letter was the
same as the 132a letter in Industrial’s claim manual. It cited the same two grounds for
denying coverage, and only those two: part IV of the policy limited coverage to bodily
injury, and Insurance Code section 533 prohibited coverage for intentional acts. Again,
these two grounds were not affected at all by the “coverage argument” raised at the seminar
in 1986. Rossi testified that, when he wrote the letter, he was aware of no other grounds
for denying coverage.
       In February of 1989, once the 132a decision was final, Richard Belardinelli wrote to
Industrial requesting that it reconsider its coverage position. He argued, among other
things, that Industrial had waived its coverage defenses, or was estopped to assert them,
because it had misled Melton into believing it would pay any 132a award. Industrial’s
response came in a letter from Andre Hassid the following month. Hassid disputed each of
Belardinelli’s contentions, including waiver/estoppel, and once again denied coverage. In
so doing, he relied on the public policy prohibiting insurance against intentional acts, citing
both Insurance Code section 533 and, for the first time, Civil Code section 1668. Also for
the first time, he argued coverage was excluded by the “accident” limitation in part IV of
the policy. He did not contend coverage was limited by part IV to bodily injury, nor that a
132a award was not a form of “compensation and other benefits.” Most importantly,
Hassid’s letter, like Rossi’s before it, did not cite as a reason for denying coverage the fact
Melton had discharged Martin after the policy expired.
       Under these circumstances, Industrial is now estopped to argue Melton’s 132a
liability was not covered due to the policy’s expiration. Although Industrial was aware of
the policy period argument and had in fact initially asserted it to disclaim coverage for
Martin’s injury claim, Industrial never raised it in connection with the 132a petition. As a
result, Melton was denied the opportunity to tender his defense of the 132a claim to his
subsequent workers’ compensation carrier in a timely manner. Moreover, Industrial’s delay
in taking a formal coverage position, coupled with its settlement efforts, caused Melton to

                                             102.
refrain from negotiating directly with Martin, whose back wages were accumulating all the
while. Since, as we have determined, the grounds Industrial relied on in refusing to pay the
132a award proved to be without merit, it would be inequitable to permit the company at
this late stage to escape responsibility for the award because of its silence.46
         [The portions of this opinion that follow (parts IIIC - IIIG) are deleted from
publication.]*
                                        C. Moot Issues
         Our conclusions regarding coverage and estoppel obviate the need to address
numerous other issues raised by Industrial. To briefly review, the trial court ruled there was
no coverage under Industrial’s policy for Melton’s 132a liability because part IV of the
policy, as well as the public policy expressed in sections 533 of the Insurance Code and
1668 of the Civil Code, limited coverage to accidental injuries. We have concluded this
ruling was incorrect as to both grounds and the policy did, in fact, provide coverage. The
court also ruled Industrial was not estopped to assert these two grounds for noncoverage in
that Industrial did not lead Melton to believe, and so he did not detrimentally rely on a
belief, his liability would be covered. Given our decision regarding coverage, we have not
addressed these specific aspects of the court’s estoppel ruling. However, we have
concluded Industrial is estopped to assert a new ground for noncoverage, expiration of the
policy period, that it has raised for the first time in the present litigation. Thus, to this point


46     For these same reasons, we disagree with the trial court’s estoppel ruling in
connection with Industrial’s other coverage defenses (the accident limitation and the public
policy statutes). Assuming Industrial (Souza and Yrulegui) told Melton when the 132a
claim was first filed that he would be responsible for any award, this admonition ceased to
have any meaning once the “potential coverage dispute” arose. Since coverage existed apart
from the doctrines of estoppel and waiver, we need not examine the court’s rulings on those
issues any further.
*   See footnote, ante, page 1.




                                               103.
in our analysis, we have concluded Industrial had a contractual duty under its workers’
compensation policy to defend and indemnify Melton against Martin’s 132a claim.
       Notwithstanding its estoppel ruling, the trial court held the ruling’s two factual
underpinnings--no belief in coverage and no detrimental reliance--did not necessarily
preclude a finding Industrial had impliedly waived its right to assert its coverage defenses
(those being the same coverage defenses the court had just ruled Industrial was not
estopped to assert). Therefore, on Melton’s first cause of action for breach of contract, the
court permitted the jury to find a “contract by waiver” if it found Industrial had “conducted
itself in a way that was so inconsistent with an intent to enforce its right to deny coverage
under the policies [sic] so as to induce a reasonable belief that Industrial Indemnity had
relinquished such right.” And on the second cause of action, the jury could find a breach of
the covenant of good faith and fair dealing either on the contract by waiver theory, or on the
ground Industrial, once it undertook to defend Melton, had a duty to do so fairly and in good
faith irrespective of whether the policy afforded coverage.47



47     The court gave the following jury instruction:
              “This court has determined, and you are instructed that the policy of
       Workers’ Compensation and Employers Liability Insurance issued by
       Industrial Indemnity to plaintiffs, Keith Melton and sierra signs [sic] does not
       provide coverage for James Edward Martin’s claim of discrimination in
       violation of Labor Code Section 132a because:
              “(1) The firing of James Edward Martin by Keith Melton was not an
       ‘accident’ within the meaning o [sic] the terms of the policy.
              “(2) It is against public policy to insure for such claims of
       discrimination, as provided for in Insurance Code Section 533 and Civil Code
       Section 1668; and
               “In addition, you are further instructed that the court has determined
       that Industrial Indemnity did not owe a duty to defend Keith Melton and Sierra
       Signs in the 132a discrimination action.




                                             104.
       The jury returned a general verdict for Melton with three special interrogatories.
The third special interrogatory asked the jury, if it found Industrial liable to Melton for
breach of the covenant of good faith and fair dealing, to specify the amount of damages it
was awarding for attorney fees. The jury entered a figure of $380,000. We will discuss
Industrial’s challenge to this award below. But for our present purposes, the special
interrogatory is significant only in that it shows the jury found in Melton’s favor on the
cause of action for bad faith.
       Industrial challenges the jury’s bad faith verdict, and the underlying contract by
waiver theory, on numerous grounds, all of which suppose the trial court’s coverage and
estoppel rulings were correct. Industrial’s principal contention, briefly stated, is that
waiver cannot create a contractual duty where none existed before, and bad faith liability
cannot arise but for an unreasonable failure to perform a contractual duty. Therefore, on
the assumption there was no coverage and no estoppel to assert its coverage defenses,
Industrial maintains it could not properly have been held liable to Melton under the first or
second causes of action. However, because coverage existed without resort to the contract
by waiver theory, we need not address Industrial’s objections to it. And given that Industrial
had a contractual duty to defend and indemnify Melton, it may be held to have breached the
covenant of good faith and fair dealing for unreasonably failing to do so. As we explained




              “However, once Industrial under took [sic] the defense of Keith
       Melton and Sierra Signs, it had a duty to do so in a reasonable manner
       and to comply with the Covenant of Good Faith & Fair Daling [sic] in
       doing so.” (Italics added.)
         Industrial contends the italicized paragraph is “clearly erroneous and prejudicial” in
that it permitted the jury to find a breach of the covenant of good faith and fair dealing in the
absence of coverage. However, since there was coverage, the instruction, while possibly
erroneous, was not prejudicial.




                                              105.
above, the jury’s analysis of the issue is the same regardless of the theory upon which the
duty was found to exist.
       On the premise it is not liable for breach of contract or bad faith, Industrial next
argues the court’s estoppel findings necessarily negated one or more elements of all the
remaining causes of action for fraud, negligent misrepresentation, negligence, negligent
infliction of emotional distress, breach of fiduciary duty, and constructive fraud. Since the
premise is incorrect, it is not necessary for us to consider these arguments further. It is
well settled a general verdict implies a finding in favor of the prevailing party of every fact
essential to the support of his or her action or defense. (Henderson v. Harnischfeger
Corp. (1974) 12 Cal.3d 663, 673.)

       “[W]here several issues are tried[,] a general verdict will not be disturbed by
       an appellate court if a single one of those issues, sufficient to sustain the
       judgment, is supported by substantial evidence and is unaffected by error,
       even though another issue leading to a similar general verdict and judgment
       was erroneously submitted to the jury.” (Louisville Title Ins. Co. v. Surety
       Title & Guar. Co. (1976) 60 Cal.App.3d 781, 786.)
       We turn now to Industrial’s surviving arguments. We begin with the jury’s award of
damages to Melton for attorney fees.
                               D. Attorney Fees as Damages
       Ordinarily, each party to a civil suit must bear his or her own legal fees. (Code Civ.
Proc., § 1021 [“Except as attorney’s fees are specifically provided for by statute, the
measure and mode of compensation of attorneys and counselors at law is left to the
agreement, express or implied, of the parties .…”]; Trope v. Katz (1995) 11 Cal.4th 274,
278-279.) However, attorney fees reasonably incurred by an insured to compel payment of
benefits due under an insurance policy are recoverable as an element of damages in a bad
faith action against the insurer. (Brandt v. Superior Court (1985) 37 Cal.3d 813, 815.)
“When an insurer’s tortious conduct reasonably compels the insured to retain an attorney to
obtain the benefits due under a policy, it follows that the insurer should be liable in a tort



                                              106.
action for that expense. The attorney’s fees are an economic loss--damages--proximately
caused by the tort.… [They] are recoverable … in the same way that medical fees would be
part of the damages in a personal injury action.” (Id. at p. 817.)
       This rule stated in Brandt is an application of the “third party tort” or “tort of
another” doctrine under which “[a] person who through the tort of another has been required
to act in the protection of his interests by bringing or defending an action against a third
person is entitled to recover compensation for the reasonably necessary loss of time,
attorney’s fees, and other expenditures thereby suffered or incurred.” (Prentice v. North
Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620; Rest.2d Torts, § 914, subd. (2), p.
492.) Under the doctrine, for example, attorney fees also are recoverable as damages in an
action for false arrest (Nelson v. Kellogg (1912) 162 Cal. 621) or malicious prosecution
(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59).
       As with any such claim for damages, a plaintiff in a bad faith action who seeks to
recover compensation for attorney fees incurred in a policy action must plead and prove the
amount of the fees actually paid or incurred. (Mabee v. Nurseryland Garden Centers, Inc.
(1979) 88 Cal.App.3d 420, 425. See Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed.
1994), ch. 9.) The amount of any damages awarded is a determination for the trier of fact
unless the parties stipulate otherwise. (Brandt v. Superior Court, supra, 37 Cal.3d at p.
819.) 48



48     The Brandt court went on to say:
       “A stipulation for a postjudgment allocation and award by the trial court
       would normally be preferable since the determination then would be made
       after completion of the legal services [citation], and proof that otherwise
       would have been presented to the jury could be simplified because of the
       court’s expertise in evaluating legal services. [Citations.]” (Brandt v.
       Superior Court, supra, 37 Cal.3d at pp. 819-820.)




                                             107.
       The recovery of attorney fees as damages under Brandt “must be distinguished from
recovery of attorney’s fees qua attorney’s fees, such as those attributable to the bringing of
the bad faith action itself.” (Brandt v. Superior Court, supra, 37 Cal.3d at p. 817.) “The
fees recoverable … may not exceed the amount attributable to the attorney’s efforts to
obtain the rejected payment due on the insurance contract. Fees attributable to obtaining
any portion of the plaintiff’s award which exceeds the amount due under the policy are not
recoverable.” (Id. at p. 819.) “If the insured were to recover benefits under the policy in a
separate action before suing on the tort, the distinction between fees incurred in the policy
action, recoverable as damages, and those incurred in the tort action, nonrecoverable, would
be unmistakable.” (Id. at p. 818.) But where, as is more commonly the case, the attorney
fees claimed as damages are incurred in the very lawsuit in which their recovery is sought,
the identification of the allowable fees may be “more sophisticated.” (Ibid.)
       The recovery of Brandt damages in a bad faith action is limited to attorney fees
“reasonably incurred” in the policy action. (Brandt v. Superior Court, supra, 37 Cal.3d at
p. 815.) “To ‘incur’ a fee, of course, is to ‘become liable’ for it [citation], i.e. to become
obligated to pay it.” (Trope v. Katz, supra, 11 Cal.4th 274, 280 [holding that an attorney
who appears in propria persona in an action to enforce a contract containing an attorney fee
clause is not entitled under Civil Code section 1717 to recover “reasonable attorney’s
fees” “incurred” in the action].) So too, “the usual and ordinary meaning of the words
‘attorney’s fees,’ both in legal and in general usage, is the consideration that a litigant
actually pays or becomes liable to pay in exchange for legal representation.” (Ibid.)
       Here the jury awarded Melton $380,000 in Brandt damages. Thus his recovery
broke down roughly as follows:



For those situations where there is no stipulation, the court set out an appropriate jury
instruction, which was given by the court in this case.




                                              108.
              $ 50,000      policy benefits (indemnification for Melton’s 132a liability)
              $200,000      compensatory damages (physical, emotional, economic)
              $ 20,000      punitive damages
              $270,000      total recovery (not including Brandt damages)
              $380,000      attorney fees incurred to recover policy benefits
              $650,000      total award
       Industrial challenges this award in three respects. First, it argues Melton did not
incur any attorney fees to recover policy benefits because, absent coverage, there were no
benefits due him under the policy. Since this argument rests on an incorrect premise, we
reject it for the reasons we have already discussed above. Similarly, we do not address
Melton’s claim Industrial owed him certain duties even in the absence of coverage.
       Next, Industrial maintains the attorney fees Melton actually “incurred” under his fee
agreement with Belardinelli were far less than $380,000. That is, Industrial asserts, without
discussion, that the agreement provided for a straight one-third contingency fee, and on this
basis argues Melton’s damages were limited to one-third the policy benefits or, at most,
one-third his total recovery. Melton, in response, seems to argue in effect that the terms of
the fee agreement were irrelevant to a determination of Brandt damages, and so he was
entitled to recover Belardinelli’s actual hourly fees notwithstanding the agreement. Both
positions are incorrect. As we have already explained, Melton incurred attorney fees only
to the extent he paid or was obligated to pay them under the fee agreement. However, we
believe the evidence shows the agreement was a “hybrid” under which Melton owed
Belardinelli one-third his recovery, or Belardinelli’s hourly fee, whichever amount was
greater.
       Much of the confusion about the nature of the agreement stemmed from the parties’
imprecise use of the term “contingency” to mean either that Melton’s obligation to pay was
contingent only on the fact of recovery, or that it also was contingent on the amount of
recovery. (See Cazares v. Saenz (1989) 208 Cal.App.3d 279, 288 [percentage

                                            109.
contingency fee depends upon two contingencies: the ultimate success of the case and the
amount recovered].) The distinction is critical to our resolution of the present issue.
       According to Belardinelli, Melton gave him a $1,000 retainer in August of 1988
under an unwritten agreement to pay $125 per hour for services rendered. But by January
of the following year, Melton’s balance had increased to over $12,000 as Belardinelli
began to prepare his demand letter to Industrial. Melton paid an additional $100 toward this
amount, but was unable to pay any more. On January 31, 1989, the agreement was
converted to a “hybrid” under which Melton was to pay the hourly rate, or one-third of any
recovery, whichever was greater. Thus, at this point Melton’s obligation still was not
necessarily contingent upon his recovering anything from Industrial; he would owe the
hourly fee even if he did not prevail. The new hybrid arrangement was evidently reduced to
writing, but the written document was not disclosed at trial for reasons of attorney-client
privilege. Belardinelli later increased his hourly rate to $150.
       Belardinelli’s fees continued to accumulate over the next two years and by the end
of January 1991, Melton’s balance was nearly $150,000. It became clear he would not be
able to pay this amount on his own. So sometime in 1991, but before the case went to trial
in September, Melton and Belardinelli reached an oral “understanding” Melton would not
owe anything unless he won. In other words, Melton’s obligation to pay Belardinelli--
whether a percentage of the recovery or the accumulated hourly fee--then became
contingent on recovery. Despite Industrial’s assertion to the contrary, the arrangement
otherwise remained a “hybrid” and was not converted to a straight one-third contingency
fee agreement. Although Belardinelli’s testimony on the subject was hardly a model of
clarity, he described his ultimate agreement with Melton as follows:

               “One of the things I should explain, it’s -- when you say contingency
       fee, it was pretty obvious that Mr. Melton or his -- and his wife could never
       pay the fees. So when I looked at it from a contingency standpoint, he just
       didn’t have the ability to pay the fees. And so it was contingent on winning
       the case for us to recover, either our hourly rate or a percentage.”


                                            110.
       Here, the amount of Belardinelli’s accumulated hourly fee that he attributed to
Melton’s pursuit of policy benefits was substantially greater than one-third of Melton’s
recovery. This, then, was the amount Melton was obligated to pay Belardinelli--an amount
the jury determined to be $380,000. In its final contention, Industrial maintains the award
was excessive as a matter of law.
       From the beginning of their relationship, Belardinelli kept track of his time and
expenses, and sent Melton a detailed statement every month. In preparation for trial on the
issue of Brandt damages, Belardinelli went back through his monthly fee statements and
tried to identify individual charges related to the recovery of policy benefits, the benefits in
this case being indemnification for Melton’s 132a liability of $51,466.92. Thus,
Belardinelli was looking for charges having to do with the first and third causes of action,
for breach of contract and waiver/estoppel respectively. More accurately, Belardinelli
marked the charges appearing to have no connection to these two causes of action,
specifically costs associated with Melton’s claim for damages for physical injury and
emotional distress, his claim for punitive damages, and his claims against Yrulegui. These
unrelated charges were then deducted from the total, and the remainder attributed to
recovery of policy benefits.
       Belardinelli conceded his methodology was imperfect. For example, many billing
entries provided only a general description of the activities involved--legal research,
preparation of pleadings, discovery, consultation with experts, letter writing, or telephone
calls--descriptions which might have applied to any or all causes of action. Belardinelli did
not attempt to further break down the charges to isolate those dealing specifically with
either breach of contract or waiver/estoppel. He explained it would have been virtually
impossible for him to refine the search to that level of specificity.
       Belardinelli also confessed to some initial confusion about the scope of the Brandt
decision. His testimony indicates he was under the impression, at least at the time he was
reviewing his bills, that Brandt damages might include attorney fees incurred in the bad

                                             111.
faith action inasmuch as it is necessary to prove bad faith in order to recover attorney fees
incurred in the policy action. But for reasons that will appear, the result would not have
been significantly different had he understood the distinction more clearly.
       Belardinelli reviewed his bills using this process for the period from September of
1988 through July of 1991. They totalled $196,781.31, of which he allocated
$157,047.81, or roughly 80 percent, to his efforts to compel payment of policy benefits.
Trial began two months later in late September and continued until early January of 1992.
Belardinelli testified regarding his bills in the middle of November. His fees for August,
September, and October totalled an additional $165,780.17. Rather than go through these
charges individually, he estimated 75 percent, or $124,335.13, was attributable to the
pursuit of policy benefits. Thus, Melton’s claim for Brandt damages as of October 31,
1991, was $281,382.94 on fees totalling $362,561.48.
       Industrial contends the jury’s $380,000 award was excessive for two reasons. First,
it argues Belardinelli failed to adequately segregate his fees attributable to Melton’s
recovery of policy benefits, i.e., those fees related to the causes of action for breach of
contract and waiver/estoppel, from his fees related to Melton’s bad faith and other
noncontract claims. Second, it asserts there is no evidentiary support for an award in
excess of the $281,000 about which Belardinelli testified.
       Under Brandt, “[t]he fees recoverable … may not exceed the amount attributable to
the attorney’s efforts to obtain the rejected payment due on the insurance contract. Fees
attributable to obtaining any portion of the plaintiff’s award which exceeds the amount due
under the policy are not recoverable.” (Brandt v. Superior Court, supra, 37 Cal.3d at p.
819.) However, “[a]ttorney’s fees need not be apportioned when incurred for
representation on an issue common to both a cause of action in which fees are proper and
one in which they are not allowed.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d
124, 129-130 [applying Civil Code section 1717].) Thus, apportionment is not required
when the prevailing party’s various claims are so “‘“inextricably intertwined”’” that it

                                             112.
would be “‘impracticable, if not impossible, to separate the multitude of conjoined
activities into compensable or noncompensable time units.’” (Abdallah v. United Savings
Bank (1996) 43 Cal.App.4th 1101, 1111.)
       The principal issue during the trial of this case was waiver/estoppel, i.e., whether
Industrial, either directly or through Yrulegui, led Melton to believe his 132a liability, if
any, would be covered under the policy. As is clear from our lengthy statement of facts,
this issue was so “inextricably intertwined” with Melton’s remaining causes of action for
bad faith, negligence, fraud, misrepresentation, breach of fiduciary duty, and his other
claims as to be practically inseparable. Melton did not seek to recover attorney fees for the
time Belardinelli spent on his claims for damages for physical injury and emotional
distress, his claim for punitive damages, and his claims against Yrulegui individually. No
further allocation of fees was reasonably possible under the circumstances.
       Finally, as noted, the jury awarded Melton about $100,000 more in Brandt damages
than Belardinelli testified he had billed Melton as of the end of October of 1991 for
services to recover the policy benefits. Industrial argues there is no evidence to support
this additional sum. October was the first full month of the trial, which would continue into
the following January. Belardinelli’s billing records were introduced at trial and show his
fees for October, reduced by 25 percent for purposes of the Brandt claim, were
$49,542.17. The jury evidently added a similar amount for each of the two remaining
months of trial. It was entirely reasonable under the circumstances for the jury to infer that
Belardinelli’s fees in November and December were the same as they had been in October.
       In summary, we will uphold the jury’s award of Brandt damages.
                                 E. Special Interrogatories
       Industrial maintains the trial court erred by refusing its request to give a 29-page set
of 36 special interrogatories that would have required the jury to subdivide its award into
contract and tort damages and the latter into economic and noneconomic damages; to
allocate comparative fault as between Melton, Industrial, Yrulegui, and all nonparties (e.g.,

                                             113.
Mitchell and Ellis) for noneconomic damages in connection with the tort causes of action;
to allocate comparative fault as between Melton, Industrial, and Yrulegui for economic
damages in connection with these same causes of action; and to make specific findings
regarding Industrial’s liability under each cause of action. The court found the proposed
interrogatories were too complex for the jurors to understand. (See Wyler v. Feuer (1978)
85 Cal.App.3d 392, 405-406; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 588-590.)
Instead, the jury was given a general verdict form and a set of three special interrogatories
requiring it to make findings on whether Industrial and/or Yrulegui acted with malice, fraud,
or oppression, and to specify the amount of Melton’s Brandt damages. Based on its
response to the interrogatories, the jury then returned a special verdict awarding Melton
$20,000 in punitive damages as against Industrial only.
       Industrial’s primary objection to the procedure used by the court is that it did not
require the jury to allocate responsibility for Melton’s noneconomic damages. (Roslan v.
Permea, Inc. (1993) 17 Cal.App.4th 110.) Under Civil Code section 1431.2, Industrial was
liable for Melton’s noneconomic damages only in direct proportion to its percentage of
fault. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) This section provides:

              “(a) In any action for personal injury, property damage, or wrongful
       death, based upon principles of comparative fault, the liability of each
       defendant for non-economic damages shall be several only and shall not be
       joint. Each defendant shall be liable only for the amount of non-economic
       damages allocated to that defendant in direct proportion to that defendant's
       percentage of fault, and a separate judgment shall be rendered against that
       defendant for that amount.

               “(b)(1) For purposes of this section, the term ‘economic damages’
       means objectively verifiable monetary losses including medical expenses,
       loss of earnings, burial costs, loss of use of property, costs of repair or
       replacement, costs of obtaining substitute domestic services, loss of
       employment and loss of business or employment opportunities.

               “(2) For the purposes of this section, the term ‘non-economic
       damages’ means subjective, non-monetary losses including, but not limited
       to, pain, suffering, inconvenience, mental suffering, emotional distress, loss


                                             114.
       of society and companionship, loss of consortium, injury to reputation and
       humiliation.”
       However, it appears the jury awarded Melton little, if any, noneconomic damages.
Melton generally alleged he had suffered emotional distress, as well as assorted economic
losses, as a result of Industrial’s and Yrulegui’s mishandling of the 132a claim against him.
He testified he was under a lot of stress during the time the claim was pending, which stress
eventually manifested itself in the form of high blood pressure and caused, or at least
contributed to, the rupture of a blood vessel in his eye in 1989. He presented expert
medical testimony to this effect, which was disputed in turn by Industrial’s medical expert.
       Melton also presented the testimony of Joseph Penbera, an economist, regarding his
economic damages, and in particular the economic value of the money he borrowed to pay
the 132a award. These damages included the loan itself, the present value of the interest
payments, the lost opportunity cost of the money, and Sierra Signs’s lost profits and lost
business value for the period from 1988 through 1990. (Penbera testified in November of
1991, and the trial continued into January of the following year.) Penbera’s calculations
also took into account the present value ($830.76) of the medical expenses Melton
reportedly incurred as a result of his stress. In response, Industrial offered the testimony of
Richard Nordstrum, also an economist, who disagreed with some of the assumptions
underlying Penbera’s figures.
       According to Penbera, Melton’s economic damages, not including attorney fees,
came to $244,559.12. The jury awarded him $250,000 in undifferentiated damages, plus
$380,000 in Brandt damages and $20,000 in punitive damages. Thus the verdict, viewed in
light of the evidence, suggests the jury did not award Melton any noneconomic (i.e.,
emotional distress) damages at all.
       The parties themselves seem to have assumed as much. As noted, Yrulegui’s
liability extended only to the $250,000; Industrial alone was responsible for the Brandt
damages and punitive damages. After the verdict but before judgment was entered, Yrulegui



                                             115.
reached a sliding scale (“Mary Carter”) settlement agreement with Melton (see Code Civ.
Proc., § 877.5, subd. (b); Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858) under
which he agreed to make an immediate payment to Melton of $125,000, and a contingent
payment sufficient to bring the total to $250,000 in the event Industrial ultimately were
found to be liable to Melton for less than the remaining $125,000. Thus, the agreement
supposed Yrulegui was jointly and severally liable for the entire $250,000 award.
(Nevertheless, some part of the award presumably was contract damages, i.e., the value of
the policy benefits due Melton under the policy, for which Yrulegui was not responsible.)
       Yrulegui then moved the court for a determination of good faith settlement. (Code
Civ. Proc., § 877.6.) Industrial opposed the motion on the ground Yrulegui was far more at
fault for Melton’s damages than Industrial. In this regard, Industrial also argued most of the
$250,000 award was for Melton’s emotional distress attributable to Yrulegui, and for which
it therefore bore no liability at all. That is, Industrial made essentially the same argument it
now raises here regarding the jury’s failure to allocate fault and to segregate economic
from noneconomic damages. The court implicitly rejected this argument and approved the
good faith settlement, which it applied in the amount of $125,000 as a credit or setoff
against Industrial’s liability. (Code Civ. Proc., § 877.) A setoff of this sort applies only to
economic damages. (Greathouse v. Amcord, Inc. (1995) 35 Cal.App.4th 831, 838;
Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 275.)
       Industrial objected to the court’s valuation of the credit, contending the setoff
should have been the whole $250,000. In making this contention, Industrial abandoned its
earlier position and maintained instead that Yrulegui was jointly and severally liable for the
full amount. This, of course, would have been true only if the award consisted entirely of
tort damages for Melton’s economic losses. (See Espinoza v. Machonga, supra, 9
Cal.App.4th at p. 275 [explaining it is in the interest of a nonsettling defendant to allocate
settlement to economic damages so as to increase the credit against its own liability].) The
court eventually valued the agreement’s contingent payment at $5,000, and amended its

                                             116.
order approving the good faith settlement to provide for a credit of $130,000, leaving
Industrial liable for only $120,000 in economic damages. (Industrial reversed position
again in its motion for new trial, arguing once more it was entitled to have the jury allocate
noneconomic damages.)
       In short, the evidence does not support the argument Melton’s damages were
predominantly noneconomic. Nor does it indicate Industrial had comparatively little
responsibility for them. Quite the opposite is true. We need not review all the evidence to
prove the point, but it is helpful to recall the jury found that only Industrial’s actions were
sufficiently egregious to warrant an award of punitive damages. There is, in other words,
simply no reasonable interpretation of the evidence under which Industrial’s liability would
have been any less than the amount it was required to assume. Therefore, the court’s failure
to have the jury allocate fault and segregate economic and noneconomic damages, although
error, was not prejudicial.
       We turn next to Industrial’s complaint the general verdict failed to allocate fault to
Melton for his (or his agents’) alleged mishandling of the132a petition. However, a
liability insurer cannot assert the “comparative bad faith” of its insured in an underlying
third party action as an affirmative defense to a bad faith action against it. (Kransco v.
American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 411.) That is, the
principles of comparative fault do not apply in insurance bad faith cases to reduce the
insurer’s liability for tort damages in proportion to the insured’s responsibility for his or
her own losses. This is so because, while the insurer’s breach of the implied covenant of
good faith and fair dealing is governed by tort principles, the insured’s breach of the




                                              117.
covenant is not a tort, but rather is confined to the express contractual provisions of the
policy. (Id. at p. 412.) Industrial’s present complaint therefore is unfounded.49
       Finally, Industrial criticizes the general verdict because it failed to identify the cause
or causes of action under which the jury found Industrial and Yrulegui liable to Melton. Its
proposed special interrogatories were necessary, Industrial argues, to test the general
verdict, given Melton’s various theories of liability with their differing defenses and
measures of damage. Nothing about the jury’s verdict, however, is inconsistent with its
finding Industrial was liable for bad faith, which finding in turn permitted the jury to award
both economic and noneconomic damages, as well as Brandt damages and punitive
damages. (Crogan v. Metz (1956) 47 Cal.2d 398, 404-405; Gilman v. Nemetz (1962) 203
Cal.App.2d 81, 94 [applying general verdict rule despite differences in measure and amount
of damages under various theories of liability]; compare Tavaglione v. Billings (1993) 4
Cal.4th 1150 [general verdict rule not applicable where one of several causes of action does
not account for all of jury’s damages award].)
                                       F. Other Issues
       Next, Industrial maintains the trial court committed some 23 additional errors that
individually and collectively require reversal. We address them in order.
                                     1. Implied Waiver
       As we have already explained, the terms waiver and estoppel, although they refer to
distinct doctrines resting on different legal principles, are often used interchangeably (and
sometimes incorrectly) in insurance cases. Here the court found Industrial’s workers’


49     The court nonetheless instructed the jury that the total amount of damages to which
Melton would otherwise be entitled must be reduced in proportion to his own contributory
negligence or comparative bad faith, as those terms were defined in the instructions. The
jury was then given a modified version of BAJI No. 14.90 outlining the steps it should take
to determine Melton’s damages accordingly.




                                             118.
compensation policy did not cover Melton’s 132a liability, and held further that Industrial
was not estopped to deny coverage because it had informed Melton he would be personally
responsible for any 132a award. But the court allowed the cause of action for breach of
contract to go to the jury on a “contract by waiver” theory. The court’s instructions on this
theory incorporated two definitions of waiver: first, the voluntary relinquishment of a
known right (i.e., the right to assert certain coverage defenses) by conduct “so inconsistent
with an intent to enforce the right as to induce a reasonable belief that such right has been
relinquished,” and second, loss of the right to deny coverage as a consequence of having
provided a defense without a reservation of rights. This latter type of “waiver” requires
detrimental reliance by the insured and is actually a form of equitable estoppel. The
existence of an estoppel is a nonjury fact question to be determined by the court.
Therefore, Industrial contends the court erred by submitting the contract by waiver theory
to the jury. True as this may be, it makes no difference here because we have determined
the policy covered Melton’s 132a liability without resort to the theory.
                                     2. Judicial Notice
       Industrial complains the court erred by refusing to take judicial notice of certain
“facts” contained in Martin’s WCAB file. This claim is closely related to the next three, so
we briefly review the relevant proceedings to place all four issues in their proper context.
       Prior to trial, at Industrial’s request, the court took judicial notice of Martin’s entire
WCAB file, and of the Board’s findings and award with respect to Martin’s 132a claim. In
particular, the court took notice of two of the Board’s findings of fact:

              “1. EDWARD JAMES MARTIN did at Visalia, California, on April
       24, 1984, sustain an injury to his right lower extremity, left arm and back,
       arising out of and occurring in the course of his employment as a sign
       repairman by SIERRA SIGNS.

              “2. KEITH MELTON discriminated against EDWARD JAMES
       MARTIN by discharging him on August 21, 1984 for having made known his
       intention to file a claim for compensation in connection with this injury.”



                                             119.
Industrial also requested the court take judicial notice of various other “matters” that are
unrelated to the present discussion. It did not ask the court to take notice of the facts that
are the subject of the present dispute. (See Evid. Code, § 453 [party requesting judicial
notice must give sufficient notice of request].)
       Industrial, at the same time, asked the court to give preclusive effect to the Board’s
findings. It asserted Melton should be collaterally estopped to argue Martin’s injury was
not work-related and, more importantly, he should be estopped to claim Martin’s firing was
not intentional.50 In relation to this second point, Industrial cited the four “facts,” which it
maintained established as a matter of law that Melton’s motive for firing Martin was
discriminatory.51 The four facts were extracted from the “OPINION ON DECISION” in
which the WCJ set out the basis for his two findings. Industrial’s ultimate purpose in all
this was to show that, because Martin’s firing was intentional, Melton’s 132a liability was
not covered under the policy for the reasons we have already discussed (and rejected).
Industrial made this coverage argument in its then-pending motion for judgment on the



50     The WCAB found only that Melton had discharged Martin in violation of section
132a. It did not find the violation was intentional nor, as we have already explained, are all
132a violations necessarily intentional.
51     These “facts” were:
              “1. That plaintiff KEITH MELTON vehemently questioned and
       resented Ed Martin’s claim and was uncooperative in its furtherance.
              “2. That on the Friday prior to August 21, 1984, Vic Durham, an
       employee of plaintiff, had a conversation with Edward Martin in which
       Durham stated to Martin ‘I feel sorry for you, because Keith is going to fire
       you, because he is afraid you are going to sue him.’
              “3. KEITH MELTON had determined, prior to August 20, 1984, to
       release Ed Martin from employment.
              “4. That the reason KEITH MELTON gave to Ed Martin for
       discharging him on August 21, was a pretext.”




                                              120.
pleadings, to which it attached the WCAB file. The court subsequently denied the motion,
but ruled there was no coverage because the firing was indeed intentional, just as Industrial
had maintained.
       Industrial had a second, related purpose for its request, which was to preclude
Melton from arguing Industrial had acted in bad faith by failing to conduct an adequate
investigation into Martin’s injury and discrimination claims. Industrial contended collateral
estoppel should also bar Melton from attempting to show a more thorough investigation
would have produced evidence sufficient to cause the WCJ to reach a different conclusion
more favorable to him.
       Along with its requests for judicial notice and collateral estoppel, and its motion for
judgment on the pleadings, Industrial filed 55 motions in limine. Motions 16 and 18
sought, on the grounds of collateral estoppel, to preclude Melton from challenging the
Board’s two findings, i.e., that Martin suffered an injury AOE/COE, and Melton fired him in
violation of section 132a. The court granted these two motions and instructed the jury to
accept the findings as true for all purposes. Motions 15 and 53 sought to bar Melton from
making any reference to Industrial’s investigation of Martin’s claims. The court granted
these motions with respect to Industrial’s investigations of Martin’s injury and
discrimination claims, but denied it with respect to Industrial’s coverage investigation.
       Later on during the trial, the court reconsidered and modified its collateral estoppel
decision. It ruled Melton was still estopped to relitigate his 132a liability, but he could
attempt to show he would have prevailed at the 132a hearing had he been given a more
effective defense. Accordingly, the court instructed the jury it must accept as true only that
Martin had been “adjudged” by the WCAB to have suffered an injury AOE/COE and to have
been discharged in violation of section 132a. The court also reversed its prior rulings on
Industrial’s in limine motions relating to investigation of Martin’s injury and discrimination
claims.



                                             121.
       Industrial challenges the court’s refusal to take judicial notice of the four “facts,” its
modification of the jury instruction, the reversal of its ruling regarding investigation of
Martin’s injury and discrimination claims, and the denial of Industrial’s motion to exclude
evidence of Industrial’s coverage investigation.
       As we have already noted, the court did not refuse to take judicial notice of the four
facts because it was never formally asked to do so. Moreover, it would have been error for
the court to grant any such request. While the court properly took judicial notice of the
WCAB file, and of the fact the WCJ made certain factual findings, it could not take judicial
notice of the truth of “facts” asserted in the findings of fact. (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1564-1569.) This is true apart from whether the doctrines of res
judicata or collateral estoppel operated to prevent any further litigation of the matters
contained in the findings. (Id. at pp. 1566, 1569.) And finally, it made no difference in the
end whether the court took notice of the four “facts” or not. Industrial cited them to show
Melton’s firing of Martin was an intentional act. The trial court agreed it was, as do we.
Therefore, Industrial suffered no prejudice.
                             3. The Modified Jury Instruction
       Here again, Industrial fails to distinguish between judicial notice and collateral
estoppel. What the court gave in effect was a judicial notice instruction, not a collateral
estoppel instruction. “Whether a factual finding is true is a different question than whether
the truth of that factual finding may or may not be subsequently litigated a second time.”
(Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1569.) A fact judicially noticed is treated as
true for purposes of proof. “The effect [of taking judicial notice] would be that without
resort to concepts of collateral estoppel or res judicata that would litigate whether the issue
was fully addressed and resolved, a finding of fact would be removed from dispute in the
other action in which it was judicially noticed.” (Id. at p. 1564.) As discussed, the court
could properly take judicial notice of the fact the WCAB had made certain findings of fact,
i.e., the WCAB had “adjudged” certain things to be true, but the court could not take notice

                                               122.
of the truth of the facts contained in Board’s findings. (Id. at pp. 1564-1569.) Therefore,
the court’s modified instruction was correct. (See Evid. Code, § 457 [“If a matter
judicially noticed is a matter which would otherwise have been for determination by the
jury, the trial court may, and upon request shall, instruct the jury to accept as a fact the
matter so noticed.”].) It remains to be decided whether Melton should have been
collaterally estopped to argue Industrial had conducted an inadequate investigation into the
facts underlying the Board’s findings.
                            4. Industrial’s Claims Investigation
       The doctrine of collateral estoppel prevents the relitigation of an issue actually
decided in a prior proceeding between the same parties or their privies.

               “A prior determination by a tribunal will be given collateral estoppel
       effect when (1) the issue is identical to that decided in a former proceeding;
       (2) the issue was actually litigated and (3) necessarily decided; (4) the
       doctrine is asserted against a party to the former action or one who was in
       privity with such a party; and (5) the former decision is final and was made on
       the merits.” (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329,
       1339.)
       Assuming the other elements of collateral estoppel were met in this case, the issue
Melton sought to prove at trial was not the same as the issue litigated at the 132a hearing.
Melton was not attempting to overturn the WCAB’s determination he violated section 132a,
but rather to show that, but for Industrial’s inadequate investigation, he would have prevailed
at the hearing. Specifically, it was Melton’s position that a more complete investigation
would have uncovered evidence Martin’s injuries were not the result of his fall from the
ladder, but were incurred later during a fight or a fall from a motorcycle. Similarly, Melton
maintained there was evidence Martin was an undependable worker who was fired for that
reason, and not because of his injury.
       In order to prevail on a claim for legal malpractice or other form of professional
negligence, a plaintiff generally must prove a “case-within-a-case” in order to establish
causation. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-


                                              123.
837; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 131.) That is, the plaintiff must
show he or she would have prevailed in the underlying action in the absence of the
attorney’s negligence. (Williams v. Wraxall, supra, 33 Cal.App.4th at p. 131.) The same
burden exists in a bad faith lawsuit alleging an insurer provided its insured with an
inadequate defense. (Travelers Ins. Co. v. Lesher (1986) 187 Cal.App.3d 169, 197.) Since
an inadequate defense was central to Melton’s claims against Industrial and Yrulegui, he
properly was permitted to present evidence challenging their investigation into Martin’s
claims.
       Industrial also contends the quality of its investigation into Martin’s injury claim was
irrelevant because it had an absolute right to settle the claim as it saw fit. As we have
already explained however, that right is limited by the duty of good faith where, as here, the
settlement might affect the insured’s premiums or 132a liability. (Notrica v. State Comp.
Ins. Fund, supra, 70 Cal.App.4th at pp. 921-925.) (See fn. 14.)
                          5. Industrial’s Coverage Investigation
       Industrial argues Melton should not have been permitted to criticize its coverage
investigation because there was no coverage, and so its failure to conduct an investigation
was “completely irrelevant.” But, as previously noted, we have determined Melton’s 132a
liability was covered under the policy. More to the point, when Martin filed his
discrimination claim, no determination had yet been made regarding coverage. That is the
whole purpose of an investigation. If Industrial had reviewed its coverage position, this case
might never have developed as it did, for several reasons. First, the rationale Industrial
relied on initially to deny coverage was legally suspect. (See fn. 43.) Second, the change in
the law that gave rise to the “potential coverage dispute” had occurred three years before
Martin filed his 132a petition. (See fn. 18.) And finally, to the extent Industrial intended to
rely on it as a reason to deny coverage, even a cursory investigation would have turned up
the fact Martin’s discharge had occurred after the policy expired. We find no error.



                                             124.
                               6. Standard of Care Evidence
       Industrial moved in limine to exclude all expert testimony to the effect it was the
custom and practice in the insurance industry to attempt to resolve 132a claims along with
injury claims. The court denied the motion subject to a future relevance objection.
Industrial maintains this was error.
       As Industrial did not raise any objection when the testimony was later offered at
trial, it failed to preserve the issue for appeal. (See People v. Morris (1991) 53 Cal.3d
152, 188-190 [motion in limine, without subsequent objection, will preserve issue for
appeal only if made when it was possible to decide the evidentiary question in appropriate
context].) Moreover, by the time the testimony was offered, there already had been
considerable testimony it was in fact Industrial’s own practice to attempt to resolve 132a
claims with the normal issues. This effectively answered Industrial’s objection that the
manner in which other companies handled 132a petitions did not necessarily establish a
standard of care for Industrial.
                         7. Expert Testimony Regarding the Law
       Industrial moved in limine to preclude Melton’s experts from giving an opinion
about what the law is, and more particularly about whether Industrial’s policy covered
Melton’s 132a liability. The court granted the motion. A lengthy discussion followed
about whether an expert should be permitted to state his or her understanding of the law. It
focussed on the anticipated testimony of Timothy Nye, who was expected to express the
opinion Industrial’s no-coverage position was unreasonable. But, by the time the discussion
concluded, the court had already ruled there was no coverage. So the issue became more
generally whether Nye would be allowed to opine Industrial and/or Yrulegui had conducted
an inadequate coverage investigation. The court reserved a ruling pending the testimony.
       Nye’s subsequent testimony on the subject was critical primarily of Yrulegui for
failing to examine Industrial’s coverage position when he first undertook Melton’s 132a
defense, and then for failing to deal appropriately with the conflict of interest situation that

                                              125.
arguably arose once he learned of the “potential coverage dispute.” In the course of his
testimony, Nye, as well as another of Melton’s experts, William LaFay, expressed the
belief there was coverage, or at least the potential for coverage, under Industrial’s policy,
notwithstanding the trial court’s earlier ruling. Industrial claims this was error.
       Industrial did not object to this testimony, and in fact elicited some of it during its
cross-examination of the two experts. Further, although Industrial asserts the testimony
was “highly prejudicial,” it does not explain why, nor does the case it cites in support of its
argument shed any light on the matter. (California Shoppers, Inc. v. Royal Globe Ins. Co.
(1985) 175 Cal.App.3d 1, 66-67 [expert witness may not state interpretations of the law].)
Here the thrust of the testimony was not that there was coverage, but that there were
questions about coverage that should have caused Industrial and Yrulegui to take certain
steps they did not. The existence of a coverage question, at least after the seminar, is
undisputed. The jury was informed of the court’s coverage ruling prior to the expert
testimony, and it was instructed bad faith cannot be predicated on denial of benefits when
there is a “genuine or debatable legal or factual issue concerning … coverage .…” It was
also instructed to disregard the experts’ opinions to the extent they presupposed the
existence of coverage. We find no error.
       Industrial makes a similar objection to the testimony of Melton’s experts that an
insurer can waive or be estopped to assert its coverage defenses if it provides a defense
without a reservation of rights. This testimony was not significantly different from what the
court itself instructed the jury. As to the testimony Industrial had, in fact, waived its
coverage defenses in this particular case, Industrial raised no objection at the time.
                              8. Timothy Nye’s Qualifications
       Timothy Nye is an attorney who, at the time of trial, had practiced for several years
defending employers in workers’ compensation cases. Prior to his testimony, Industrial
argued Nye was not qualified to offer an expert opinion about insurance claims practices,



                                              126.
and moved to exclude his testimony on this subject. The court denied the request.
Industrial asserts this was error.
       Industrial’s motion was premature. When Nye subsequently appeared as a witness,
Industrial conducted no voir dire into his qualifications. Nye’s testimony was directed
almost entirely at Yrulegui’s handling of the 132a defense. Industrial has not pointed us to
any objectionable testimony of Nye regarding Industrial’s claims practices in particular, nor
did it make any such objection. The issue is waived. (Cf. People v. Blankenship (1989)
213 Cal.App.3d 992, 995-996.)
                              9. The Compromise and Release
       On August 26, 1985, the day before the matter was set for a hearing, Martin agreed
to accept Industrial’s offer to settle his injury claim for $4,200. Yrulegui sent Deutinger,
Martin’s attorney, a proposed compromise and release (C & R) the same day. Industrial’s
present objection, and the next two, look to changes made to the C & R before it was
approved by the WCJ. First, Yrulegui’s draft stated Martin had been “laid off” from work in
July of 1984; Deutinger changed it to say Martin had been “disabled” from work. Second,
Yrulegui requested the WCJ make a Thomas finding relieving Industrial of future liability
for Martin’s vocational rehabilitation benefits, but the WCJ concluded the record did not
support the finding and approved the C & R without one. Third, Deutinger made an addition
to the standard language in the C & R form to say it was not intended to settle Martin’s
132a claim. Industrial and Yrulegui accepted the revisions without objection. One of the
issues at trial was whether these changes to the settlement of the normal issues somehow
prejudiced Melton’s position with regard to the 132a.
       Industrial moved in limine to preclude Timothy Nye from expressing his opinion the
first change was prejudicial. The court granted the motion only to the extent it ruled it
would be unduly speculative for Nye to say what the WCJ would have done had the change
not been made. Nye was not precluded from expressing his opinion about the change itself.
He was later permitted to testify, over Industrial’s objection, that the substitution of

                                             127.
“disabled” for “laid off” “might have had … an impact.” He did not explain why he
believed this to be so, other than to say the WCAB was “severely underfunded and
understaffed” at the time, nor did he describe what the effect might have been. Industrial
objects to this testimony because it was speculative, and because it permitted Melton to
relitigate the Board’s 132a findings. The second objection is groundless for the reasons we
have already discussed.
       It is difficult to decipher the point Nye was trying to make. There is no dispute
Martin became disabled in July of 1984. The only significant disability issue for purposes
of the 132a claim was whether his injury was work-related. There is likewise no dispute
Martin was laid off, i.e., effectively fired, when he attempted to return to work in August.
The only contested issue in regard to the firing was Melton’s motive behind it. In short,
Nye’s testimony about the first change in the C & R was so brief and so vague as to be
insignificant.
                                  10. The Thomas Finding
       Absent a Thomas finding in the C & R, Martin was still entitled to seek vocational
rehabilitation benefits for a period of up to five years from the date of his injury. (§§ 5410,
5405.5.) Industrial moved in limine to exclude any evidence the omission of the finding
affected resolution of Martin’s 132a claim. It argued the evidence was irrelevant because
the five-year limitations period had expired without Martin having made a claim, and
because liability for the benefits would have fallen on Industrial rather than Melton in any
event. Thus, it reasoned, the lack of a Thomas finding had caused Melton no harm. The
court rejected this reasoning and denied the motion. Nye later testified Martin might have
been more inclined to settle the 132a if there had been a Thomas finding. Industrial
contends the court erred by denying its motion, and by refusing to instruct the jury on the
statute of limitations for rehabilitation claims.
       The potential for harm to Melton from the omission of a Thomas finding was not
limited to possible liability for Martin’s rehabilitation benefits. Nye’s testimony suggests

                                             128.
another, less direct form of damage. A Thomas finding would have indicated there was a
serious question whether Martin had suffered an injury AOE/COE, and it therefore would
have increased the risk to Martin if he elected to litigate the issue at the 132a hearing. It
was in Melton’s interest, in other words, to make as strong a showing as possible in support
of a finding. Industrial had a corresponding duty to thoroughly investigate the cause of
Martin’s injury.
       Conversely, the absence of a Thomas finding, if he had understood the significance
of it, might have induced Melton to settle the 132a. Although Industrial would have been
liable for Martin’s rehabilitation benefits, its payment of the benefits could have increased
Melton’s insurance premiums. Melton testified he would have attempted to settle the 132a
along with the normal issues if someone had fully explained to him the risks he faced.
Thus, Industrial’s settlement of the normal issues implicated its duty of good faith and fair
dealing. (See fn. 14.)
                               11. Nonsettlement of the 132a
       The C & R of the normal issues would not have settled the 132a with or without the
additional language inserted by Deutinger. (Morehouse v. Workers’ Comp. Appeals Bd.,
supra, 154 Cal.App.3d at p. 331.) However, the trial court refused Industrial’s request to
give a jury instruction to this effect. Industrial contends this was error because the
instruction was necessary to counteract Nye’s criticism of Industrial for failing to object to
what was an inconsequential change in the C & R. The record does not support this
contention. None of Nye’s testimony cited by Industrial makes any reference at all to this
change in the C & R.
                     12. Evidence Industrial Was a Party to the 132a
       Industrial moved in limine to preclude Melton from referring to Industrial as a party
to the 132a. The court denied the motion. It also declined to take judicial notice of the
“fact” Industrial was not a party to the 132a.



                                             129.
       Whether Industrial was a party to the 132a, or should have been, or appeared to be,
was a source of considerable confusion and disagreement, both while the 132a claim was
pending before the WCAB, and throughout the trial below. The court instructed the jury
that evidence Industrial was a party to the 132a had been admitted only for the limited
purpose of determining whether Melton reasonably could have believed Industrial would
pay a 132a award. (See fn. 17.) Since Industrial does not dispute that the evidence was
admissible for this purpose, and since the jury presumably followed the court’s instruction,
no error occurred.
                           13. Failure to Instruct Re: Estoppel
       The court held Industrial was not estopped to deny coverage because Melton had
been made aware of Industrial’s coverage position and therefore had not relied to his
detriment on a belief Industrial would pay the 132a award. However, the court refused
Industrial’s request to give various instructions that would have set out the elements of
estoppel and informed the jury of its decision. Industrial claims this was prejudicial error
because it left the issue of estoppel unresolved for the jury. Industrial argues in particular
that the jury could have found it liable for bad faith because Andre Hassid, in response to
Belardinelli’s demand letter, refused, on behalf of Industrial, to accept coverage under an
estoppel theory, when in fact his position was correct.
       The existence of an estoppel, like other theories of coverage in this case, was the
subject of considerable dispute, both factual and legal. The jury was instructed it could find
bad faith where an insurer acted unreasonably to deprive its insured of the benefits due
under the policy, as by refusing unreasonably to pay a covered claim, conducting an
inadequate factual investigation, failing to inform the insured of settlement offers, or by
denying coverage without thoroughly examining the grounds for its denial. The jury was
also instructed, however, that “The mere denial of benefits … does not demonstrate bad
faith especially where the denial is based on a genuine or debatable legal or factual issue
concerning [coverage] .…” Estoppel clearly was such an issue.

                                             130.
                          14. Agency Instruction -- Lloyd Ellis
       Industrial asked the court to instruct the jury that Lloyd Ellis, the insurance broker,
was the agent of Melton and not Industrial, such that any representations made by Ellis to
Melton were not binding on Industrial. Instead, the court gave the following instruction:
“An insurance broker[] is the agent of the insured and is not the agent of the insurer unless
there is a separate contract between the broker and the insurer.” (Italics added.)
Industrial contends the italicized language allowed the jury to conclude Ellis was acting for
Industrial and so to hold Industrial responsible for Ellis’s “misrepresentations and
negligence to MELTON.”
       As Industrial concedes, however, there was absolutely no evidence of a separate
contract between Ellis and Industrial. Thus, there was no reason under the instruction for
the jury to conclude Ellis was Industrial’s agent. Moreover, Industrial has failed to point to
a single act of misrepresentation or negligence by Ellis in any capacity. In fact, Ellis played
a very minor role in this case. The only significant event in which he took a meaningful part
was the decision to hire Yrulegui for the 132a, where he acted as an intermediary between
Industrial (Rauch) and Melton. Ellis testified he had been given the impression by Rauch,
which he conveyed in turn to Melton, that Industrial had already hired Yrulegui to represent
its interests, and that Melton could either agree to be jointly represented by Yrulegui at
Industrial’s expense, or could hire someone else to represent him at his own expense.
Nothing in either Ellis’s or Melton’s rendition of this exchange conveyed a suggestion Ellis
was purporting to speak for Industrial.
                         15. Agency Instruction -- John Mitchell
       Industrial requested an instruction stating that any act or omission of John Mitchell,
since he was Melton’s agent, was attributable to Melton. The court gave the instruction but
limited its application to “imputed knowledge only.” This was error, according to
Industrial, because Mitchell was Melton’s agent for all purposes “including his failures to
act on MELTON’s behalf.” (See Yanchor v. Kagan (1971) 22 Cal.App.3d 544, 549.)

                                             131.
However, Industrial neglects to identify any specific act or omission by Mitchell which, had
it been attributed to Melton, might have affected the jury’s verdict. Therefore, it has failed
to show it was prejudiced by the alleged error.
                16. Jury Instruction -- Willful Suppression of Evidence
       The court, at Melton’s request, instructed the jury: “If you find that a party wilfully
suppressed evidence in order to prevent its being presented in this trial, you may consider
that fact in determining what inferences to draw from the evidence.” (BAJI No. 2.03.)
Industrial maintains this was prejudicial error because there was no evidence either it or
Yrulegui willfully suppressed evidence. (Estate of Moore (1919) 180 Cal. 570, 585;
County of Contra Costa v. Nulty (1965) 237 Cal.App.2d 593, 594-598.) We agree the
court should not have given the instruction, but conclude the error was not prejudicial.
Unlike the two cases just cited, where on the entire record the instruction was clearly
directed at one party in particular, the present record does not suggest Industrial and/or
Yrulegui, any more than Melton, withheld pertinent evidence.
                         17. Jury Instruction -- Clerical Errors
       The WCAB held a supplemental hearing in December of 1988 to determine the
amount of Martin’s accrued lost wages recoverable under section 132a. The WCJ’s initial
award, dated March 24, 1989, was made in favor of Martin and against Industrial. Four days
later, on March 28, the WCJ issued an order amending the award to indicate it was against
Sierra Signs rather than Industrial. A dispute arose at trial over whether Yrulegui had
intervened with the WCJ on Industrial’s behalf to cause the award to be amended. Dennis
Rossi testified he called Yrulegui after the first award, and Yrulegui agreed to write a letter
to the WCJ about the apparent mistake. Yrulegui’s records reflect a phone conversation
with Rossi on March 28 about the “status” of the case, but Yrulegui denied having discussed
the award or having done anything to have it changed. Neither the WCAB file nor
Yrulegui’s file reflects any contact between Yrulegui and the WCJ on March 28. Industrial
argued the amendment was made by the WCJ on his own initiative to correct what was

                                             132.
simply a clerical error. In this connection, Industrial asked the court to give the following
instruction:

              “The Workers’ Compensation Appeals Board is vested with the full
       power, authority and jurisdiction to try and determine finally, all matters
       involving a petition under Labor Code Section 132a. Thus, a workers’
       compensation judge may correct a clerical error in connection with such
       proceeding at any time, notwithstanding the fact that the time for a
       petition for reconsideration has passed. An error resulting from the
       inadvertent omission of a matter from a decision is considered to be a
       clerical error. This court does not have jurisdiction to correct a clerical or
       other error of the Worker’s Compensation Appeals Board[, if any].” (Italics
       added.)
       The court gave the requested instruction but only after deleting the two italicized
sentences and adding the phrase “if any” at the end. Industrial asserts this constituted
prejudicial error because the changes rendered the instruction meaningless.52
       The proffered instruction was argumentative in that its evident purpose was to give
judicial weight to Industrial’s interpretation of the evidence.


52      Industrial contends the proposed instruction was particularly important because “the
court refused to allow INDUSTRIAL to call Judge Tarr as a witness … to explain that he had
corrected the erroneous Findings and Award on his own by substituting MELTON’S name
for that of INDUSTRIAL’S.” Assuming this is indeed what Judge Tarr would have said, this
contention suggests the court erred by not allowing him to testify. However, as the court
instructed the jury:
              “No person presiding at any judicial or quasi judicial proceeding shall
       be competent to testify, in any subsequent civil proceeding, as to any
       statement, conduct, decision or ruling occurring at or in conjunction with the
       prior proceeding. For this reason, neither Judge Tarr [who presided at the
       supplemental hearing to determine Martin’s back wages] nor Judge
       Gadebusch [who presided at the 132a hearing] could be a witness in this
       action and the failure to produce either Judge as a witness in this case shall
       not be construed against any party as a failure to produce stronger available
       evidence since such evidence is not legally available to any party.”
       This is a correct statement of the law. (See Evid. Code, § 703.5.)




                                             133.
       “Instructions should state rules of law in general terms and should not be
       calculated to amount to an argument to the jury in the guise of a statement of
       law. [Citations.] Moreover, it is error to give, and proper to refuse,
       instructions that unduly overemphasize issues, theories or defenses either by
       repetition or singling them out or making them unduly prominent although the
       instruction may be a legal proposition.” (Fibreboard Paper Products Corp.
       v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718.)
Although the instruction may have been a correct statement of the law regarding a court’s
power to correct clerical errors (see Morgan v. State Bd. of Equalization (1949) 89
Cal.App.2d 674, 676-682), whether that is what the WCJ did here, and why, was more
properly a subject for Industrial’s argument to the jury. And one it did in fact make.
                       18. Jury Instructions -- Statutes and Rules
       Industrial maintains the court erroneously denied its request to take judicial notice
of, and instruct the jury on, assorted statutes and WCAB rules of practice. We will assume
for purposes of this discussion that the rules say what Industrial claims they do.
       Rule 10450 requires the caption of a petition to contain the title and number of the
case. An instruction was necessary, according to Industrial, to explain why its name
appeared on the 132a petition even though it was not a party to the discrimination claim.
Rule 10447 requires a 132a petition to state with specificity the nature of each violation
alleged. Industrial claims Martin’s 132a petition failed to state a claim against Industrial.
Several other rules govern service of a petition and show, Industrial asserts, that Melton was
properly served by mail with the 132a petition.
       Sections 533 of the Insurance Code and 1668 of the Civil Code generally prohibit
insurance coverage for willful acts. Industrial claims instructions setting out the statutes’
provisions were necessary to explain the court’s coverage ruling. Section 4553 imposes
additional liability on an employer for serious and willful misconduct, and Insurance Code
section 11661 makes this liability uninsurable. A corresponding instruction arguably would
have supported Industrial’s position sections 533 of the Insurance Code and 1668 of the
Civil Code applied in this case to preclude coverage. Section 1060 of the Code of Civil



                                             134.
Procedure authorizes an action for declaratory relief. Industrial contends an instruction
was necessary to explain the circumstances under which a party, presumably Melton in this
case, could have obtained a coverage determination during the pendency of the 132a claim.
         The trial court denied these requests on the grounds their subjects were covered
adequately by the evidence, and the additional instructions, on top of all those the court was
already going to give, would only tend to confuse the jury. The court also reasoned that the
proposed instructions relating to coverage were unnecessary given its coverage ruling. We
agree.
                        19. Expert Testimony -- Economic Damages
         Joseph Penbera, Melton’s expert witness, testified Melton suffered economic
damages totalling $244,559.12, calculated as follows:

         “A. Present value of loan interest payments      $ 17,567.22 [$15,271.04]

         “B. Present value deduction for tax savings
             re: interest                                   < 605.90> [ <566.70>]

         “C. Principal loan                                 51,466.92

         “D. Opportunity cost of capital                    23,441.83

         “E. Present value of medical expenses – PAID          830.76 [       716.71]

         “F. Present value of legal/fees – PAID              1,517.39 [ 1,100.00]

         “………………………………………………………………

         “I. Present value of lost profitability          101,326.90 [ 86,006.63]

         “J. Estimated loss of business value              49,014.00”
         At trial, Industrial challenged two assumptions underlying Penbera’s calculations,
and moved to strike those portions of his testimony that relied on the assumptions. First,
Penbera adjusted some of the figures (items A, B, E, F, and I) to reflect present value by
using an interest rate greater than the legal rate. (The amounts shown in brackets above
represent Melton’s actual payments before the adjustment.) Second, Penbera assumed,


                                               135.
when he included the “opportunity cost of capital” as an element of damages (item D), that
Melton, because he had to borrow money to pay the 132a award, was thereby forced to
forego an existing business opportunity. The court denied the motions to strike, and
Industrial renews its objections on appeal.
         The concept of present value is most commonly used in personal injury cases to
determine the amount it would be necessary to pay now in order to fully compensate the
plaintiff for damages expected to occur in the future, e.g., for impairment of future earning
capacity or payment of anticipated medical expenses. (See Flahavan et al., Cal. Practice
Guide: Personal Injury (The Rutter Group 1999) ¶ 3:98 et seq., p. 3-79.) “The present
value of a gross award of future damages is that sum of money prudently invested at the
time of judgment which will return, over the period the future damages are incurred, the
gross amount of the award.” (Holt v. Regents of University of California (1999) 73
Cal.App.4th 871, 878; BAJI No. 14.70.) Thus, the future damages award is reduced or
discounted to its smaller, present value depending on various factors including the
projected discount (interest) rate and the period over which the damages are expected to
occur.
         Here, however, Penbera used present value to mean the amount Melton would have
now if, instead of having paid his medical bills or other items of damage, he had invested the
same amount at the prevailing interest rate. Thus, as Penbera conceded, his upward
adjustments for present value were made “in lieu of interest.” They were, in effect, the
same as an allowance for prejudgment interest. Prejudgment interest awarded pursuant to
Civil Code section 3288 is intended to compensate a plaintiff for loss of the use of his or
her property, and is in the nature of damages.53 (Michelson v. Hamada (1994) 29

53     Civil Code section 3288 states: “In an action for the breach of an obligation not
arising from contract, and in every case of oppression, fraud, or malice, interest may be
given, in the discretion of the jury.”



                                              136.
Cal.App.4th 1566, 1586.) It is awardable at the discretion of the trier of fact. (Id. at pp.
1586-1587.) Absent some legislative act specifying the rate of interest, the constitutional
rate of 7 percent applies. (Id. at p.1585; Cal. Const., art. XV, § 1.) The jury in this case was
instructed accordingly.
       In increasing Melton’s past payments to their present value, Penbera used the then-
existing rate of interest for treasury bonds, which varied between 8 and 9 percent, instead of
using the legal rate. Therefore, to the extent the jury relied on Penbera’s calculations, its
award, at the very least, must be modified to reflect the lower 7 percent rate. However, it is
not possible to tell from the record whether the jury meant to award prejudgment interest at
all (on top of Penbera’s figures), although it appears it did not because the award
corresponds so closely to Penbera’s total (i.e., without an additional sum reflecting interest
at the legal rate). Nor is it clear the jury understood Penbera’s calculations already
included prejudgment interest in the form of present value. In the absence of any clear
indication of the jury’s intentions, we conclude Melton is not entitled to recover
prejudgment interest, i.e., any more than he actually paid for items A, E, F, and I. Nor
should his damages be reduced in item B by more than his actual tax savings. The net
amount attributable to Penbera’s present value adjustments is $18,109.29.
       Penbera described the “opportunity cost of capital” as the return Melton could have
been expected to receive if, instead of using $51,466.92 of his $60,000 loan to pay the
132a award, he had invested the same amount in his business. That is, given that Melton
borrowed the money in the first place, Penbera’s calculation rested on at least two critical
assumptions: first, that a business opportunity existed in which Melton might have invested
and, second, that Melton was prevented from taking advantage of the opportunity because he
had exhausted his borrowing power. The record fails to support either assumption.
       There is no evidence Melton was looking to expand or improve his business, much
less evidence that an opportunity existed for him to do so. Nor does it appear he would
have been unable to borrow additional money had he wanted to. To the contrary, the

                                             137.
evidence indicates he had sufficient equity in his house to obtain another loan. The jury’s
damage award is deficient in this respect as well. (O’Neil v. Spillane (1975) 45 Cal.App.3d
147, 160 [plaintiff not entitled to recover economic damages absent proof she actually was
deprived of use and enjoyment of her property and/or she wished to rent or encumber it].)
The amount calculated by Penbera to be the opportunity cost of capital was $23,441.83,
which sum must be deducted from the damage award.
                                  20. The Fee Agreement
       Industrial maintains the trial court erred by refusing to compel Belardinelli to
produce his written fee agreement with Melton in connection with the claim for Brandt
damages. Industrial argued at trial, as it does again on appeal, that the agreement would have
established that Melton’s obligation for attorney fees was limited to one-third his recovery,
i.e., an amount that would have been much less than the $380,000 the jury awarded him.
       As we have already explained however, Melton’s liability for attorney fees was
governed ultimately by an oral modification to the written “hybrid” agreement. The
modification provided Melton was not obligated to pay attorney fees unless he prevailed in
his suit against Industrial. The principal factual dispute was whether the modification also
made Melton’s obligation contingent upon the amount of the recovery, i.e., whether, as
Industrial contends, it converted the hybrid agreement into a straight contingency fee
agreement. We have concluded it did not for reasons that require no repetition here. For
purposes of the present argument, it is enough to point out that resolution of the dispute
turned on Belardinelli’s testimony about the nature of the modification rather than on the
contents of the written agreement itself. As a result, Belardinelli’s failure to produce the
written agreement was inconsequential.
                          21. Jury Instruction -- Attorney Fees
       Industrial requested the court give the following instruction in connection with
Melton’s claim for Brandt damages:



                                             138.
             “In determining the award of attorneys’ fees you must determine
       whether the fee charges were reasonable. Testimony as to the amount of
       unpaid attorneys’ fees is not sufficient proof of the reasonable value or
       amount of legal services rendered.”
The court gave only the first sentence of the proposed instruction. Industrial contends the
court’s refusal to also give the second sentence was prejudicial error.
       The cases cited by Industrial in support of this contention stand simply for the
principle that a plaintiff seeking to recover damages must prove not only that he or she
incurred certain costs, but also that they were necessary and reasonable (and attributable to
the defendant’s acts or omissions). (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70,
73; Linde v. Emmick (1936) 16 Cal.App.2d 676, 684.) We believe this general proposition
is adequately conveyed by the first sentence of the instruction. It would seem self-evident
that an expense is not necessarily reasonable merely because it was incurred.
                       22. Jury Instructions -- Economic Damages
       Industrial argues the court’s instructions did not preclude the jury from awarding
economic damages for negligence. This was error, it asserts, because economic damages
are not recoverable for negligence unless a “special relationship” exists between the parties
(Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448-1449), and no such
relationship existed here. In fact, a special relationship does exist between an insurer and
its insured. (See Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 820.)
Regardless, the jury found Industrial was liable to Melton for bad faith, a cause of action
that does support an award of economic damages.
                        23. Jury Instruction -- Comparative Fault
       Industrial requested the court give a general instruction on compensatory damages
patterned after BAJI No. 14.00. The standard instruction states that the jury’s award is
“subject to being reduced, as you will be instructed, if you should find that the plaintiff was
contributorily negligent.” Industrial proposed to modify this phrase to substitute “at fault”
for “negligent.” It claims the change was necessary to encompass the concept of


                                             139.
comparative bad faith, and so it argues the court erred by giving the unmodified instruction.
However, as we have already explained, Industrial was not entitled to assert Melton’s
comparative bad faith as an affirmative defense to reduce its tort liability. (Kransco v.
American Empire Surplus Lines Ins. Co., supra, 23 Cal.4th at p. 411.)
                                     G. Punitive Damages
       Finally, Industrial complains the evidence is insufficient to support the jury’s award
of punitive damages. It argues the positions it took with regard to Melton’s 132a liability
were largely vindicated by the court’s determinations first that the liability was not covered
under the policy, and second that Industrial told Melton so before it provided him with a
courtesy defense. Therefore, Industrial concludes, it did not act unreasonably, much less
with malice, fraud, or oppression.
       The fact an insurer has violated its duty of good faith and fair dealing “does not in
itself establish that defendant acted with the quality of intent that is requisite to an award of
punitive damages. For this we must look further--beyond the matter of reasonable response
to that of motive and intent.” (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922.)
To justify an award of punitive damages, the defendant must be guilty of oppression, fraud,
or malice. (Civ. Code, § 3294.) It is not enough that an insurer’s claims handling practices
were negligent, overzealous, legally erroneous, and callous (Tomaselli v. Transamerica
Ins. Co. (1994) 25 Cal.App.4th 1269, 1288), or “at times witless and infected with
symptoms of bureaucratic inertia and inefficiency.” (Patrick v. Maryland Casualty Co.
(1990) 217 Cal.App.3d 1566, 1576.) “He must act with the intent to vex, injure or annoy,
or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co.
(1974) 11 Cal.3d 452, 462.)
       Our role on review is simply to determine whether a reasonable fact finder could
conclude from the evidence that the plaintiff had adequately shown malice, oppression, or
fraud. (Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 858.) We do not reweigh
conflicting evidence or make credibility determinations. (Id. at p. 860.) All presumptions

                                              140.
favor the correctness of the verdict and judgment. (Stevens v. Owens-Corning Fiberglas
Corp. (1996) 49 Cal.App.4th 1645, 1658.) Here the trial court rejected Industrial’s
challenge to the jury’s punitive damages award when it denied Industrial’s motions for
judgment notwithstanding the verdict and new trial. Although the court’s ruling is not
binding on appeal, we give it significant weight. (Ibid.)
       We believe the evidence supports the jury’s award. In reaching this conclusion, we
accept Industrial’s premise it initially informed Melton his 132a liability was not covered
under the policy, and further that this was not an unreasonable position for it to take at the
time. However, as we have already discussed at considerable length, the matter took on an
entirely different complexion the following year when the “potential coverage dispute”
arose. Although coverage was once again an issue, Industrial did not take a formal coverage
position until Rossi sent Melton a 132a letter some 16 months later. Industrial’s conduct
in the interim was at the very best ambiguous and confusing as to whether or not it was
accepting coverage. On the one hand, it provided Melton with Cumis counsel. But on the
other, it made several offers to settle the case, it conducted itself as if it were a party to the
action, and it indicated a willingness to pay some if not all of a 132a award. Nonetheless,
these actions too might be characterized as being merely shoddy or “witless” (Patrick v.
Maryland Casualty Co., supra, 217 Cal.App.3d at p. 1576), and so still short of the type of
conduct necessary to support an award of punitive damages.
       But then, when faced with the consequences of its indecision, Industrial’s response
was tellingly vexatious. It knew Melton’s potential 132a liability was increasing with each
passing week as Martin’s back wages were accumulating. More importantly, Industrial
understood Melton may have been led by its conduct to believe his liability would be
covered. In March of 1987, soon after the 132a hearing, Industrial (Schwarer) told
Yrulegui to stop making settlement offers lest they provide “more argument Mitchell will
use to make us pay if we lose.” Yrulegui complied with this instruction but represented to
Mitchell that settlement discussions were ongoing.

                                              141.
         Rossi, too, was concerned about the possibility that Industrial’s having made
settlement offers might “estoppel our position that coverage is not afforded under the
comp policy.” He expressed this concern in a memo to Richard Sullivan, Industrial’s
senior director of workers’ compensation claims, in which he also explained that Melton
faced bankruptcy if he were forced to pay the 132a award, and he would probably file a bad
faith action against Industrial as well. On this basis, Rossi proposed to Sullivan that
Industrial attempt to settle Martin’s claim for a sum between $20,000 and $25,000.
         Sullivan responded there was a principle involved and Industrial should pay nothing in
settlement “irrespective of what the God damn legal costs are.” He told Rossi he was not
concerned about Melton’s financial predicament. And Sullivan, who was not an attorney,
dismissed Rossi’s concern about an estoppel, saying “we don’t owe anything on this type
situation, so we shouldn’t be paying anything and that’s it. All the other is just a matter of
speculation.” Likewise, Sullivan told Yrulegui, in regard to the coverage theory Yrulegui
had discovered at the seminar, that “[t]he law is the law and there’s been no change in it that
I know about to [justify] having an obligation .…”
         In short, Industrial, and Sullivan in particular, knowing its mishandling of the 132a
claim had placed Melton in a precarious financial position, obdurately refused to settle the
claim and instead forced him to bring the present action, which is now more than 11 years
old. It would not have been at all unreasonable for the jury to conclude Industrial’s stubborn
indifference to Melton’s predicament demonstrated “a conscious disregard of the
plaintiff’s rights.” (Silberg v. California Life Ins. Co., supra, 11 Cal.3d at p. 462.)
         [The following portions (parts IV and V) are certified for publication.]*




*   See footnote, ante, page 1.




                                               142.
                                      IV. CONCLUSION
       We affirm the judgment holding Industrial Indemnity Company liable to Keith
Melton and Sierra Signs for breach of the implied covenant of good faith and fair dealing.
We do so, however, on different grounds than those upon which the trial court and jury
relied. Unlike the court, we conclude Melton’s section 132a liability was covered under
the workers’ compensation portion (coverage A) of his workers’ compensation and
employers’ liability policy with Industrial. We hold in particular that an employer’s section
132a liability comes within the policy’s general coverage for “compensation and other
benefits required of the insured by the workers’ compensation law.” We hold further, and
more significantly, that coverage for this liability is not precluded by the “accident”
limitation in part IV of the insuring agreements, nor by the public policy expressed in
sections 533 of the Insurance Code and 1668 of the Civil Code against insurance for willful
acts. As we have explained, the accident limitation is ambiguous, and the statutory
exclusions are inapplicable, because they would, if applied, deny coverage for nonaccidental
workplace injuries that are compensable under the workers’ compensation law, and against
which an employer is required by law to obtain insurance.
       Also on the subject of coverage, we hold Industrial is estopped to assert as a basis
for denying coverage that Melton’s section 132a violation did not occur until after the
policy expired.
       Because Industrial had a contractual duty to defend and indemnify Melton against the
section 132a claim, we have not addressed Industrial’s objections to the two theories of bad
faith liability submitted to the jury: that Industrial failed unreasonably to satisfy its
obligations arising under a “contract by waiver,” or that Industrial, once it undertook to
provide Melton with a defense, assumed a duty of good faith and fair dealing irrespective of
the policy’s application. Nor have we considered Industrial’s other contentions that
suppose there was no coverage under the policy and no estoppel to deny coverage.



                                              143.
       On the subject of damages, we conclude the evidence is sufficient to support the
jury’s award of attorney fees as damages pursuant to Brandt v. Superior Court, supra, 37
Cal.3d 813 ($380,000), as well as its award of punitive damages ($20,000). As for the
jury’s award of compensatory damages other than attorney fees ($250,000), we find the
evidence fails to support Melton’s claims for economic losses to the extent any amounts he
expended in the past have been increased to allow for prejudgment interest under the guise
of “present value” ($18,109.29). Nor is there support for Melton’s claim he is entitled to
recover economic damages representing the lost opportunity cost of capital ($23,441.83).
       We have several options in this situation. We can affirm the judgment of liability
but vacate the damages award and remand for a new trial on that issue only. Or we can
modify the award and affirm the judgment as modified. (See Cunningham v. Simpson
(1969) 1 Cal.3d 301, 310; 9 Witkin, Cal. Procedure, supra, Appeal, § 754, p. 780.) Here
its verdict fails to disclose just how the jury calculated compensatory damages, but the
amount appears to correspond closely to Joseph Penbera’s testimony regarding Melton’s
economic damages. For this reason, we elect to pursue a third option. We will affirm the
judgment of liability, and the jury’s awards of Brandt damages and punitive damages.
However, we will vacate its award of compensatory damages and remand the matter for a
new trial on that issue only, unless Melton consents to a reduction in the amount.
                                     V. DISPOSITION
       The judgment of liability is affirmed. The jury’s award of damages is affirmed in all
respects other than its award of $250,000 in compensatory damages. Its award of that
amount is vacated and the matter is remanded for a new trial on that issue only, unless




                                            144.
Melton, within 30 days from the date of the remittitur, files with the clerk of this court, and
serves upon Industrial, a written consent to a reduction of the award to $208,448.88.
(Burnett v. National Inquirer, Inc. (1983) 144 Cal.App.3d 991, 1018-1019.)
       Respondent is awarded costs on appeal.




                                                    ________________________________
                                                                            Buckley, J.

WE CONCUR:


_________________________________
                  Harris, Acting P.J.


_________________________________
                          Levy, J.




                                             145.

				
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