3850. As used in this chapter:
(a) "Employee" includes the person injured and any other person to
whom a claim accrues by reason of the injury or death of the former.
(b) "Employer" includes insurer as defined in this division.
(c) "Employer" also includes the Self-Insurers' Security Fund,
where the employer's compensation obligations have been assumed
pursuant to Section 3743.
3851. The death of the employee or of any other person, does not
abate any right of action established by this chapter.
3852. The claim of an employee, including, but not limited to, any
peace officer or firefighter, for compensation does not affect his or
her claim or right of action for all damages proximately resulting
from the injury or death against any person other than the employer.
Any employer who pays, or becomes obligated to pay compensation, or
who pays, or becomes obligated to pay salary in lieu of compensation,
or who pays or becomes obligated to pay an amount to the Department
of Industrial Relations pursuant to Section 4706.5, may likewise make
a claim or bring an action against the third person. In the latter
event the employer may recover in the same suit, in addition to the
total amount of compensation, damages for which he or she was liable
including all salary, wage, pension, or other emolument paid to the
employee or to his or her dependents. The respective rights against
the third person of the heirs of an employee claiming under Section
377.60 of the Code of Civil Procedure, and an employer claiming
pursuant to this section, shall be determined by the court.
3853. If either the employee or the employer brings an action
against such third person, he shall forthwith give to the other a
copy of the complaint by personal service or certified mail. Proof of
such service shall be filed in such action. If the action is brought
by either the employer or employee, the other may, at any time
before trial on the facts, join as party plaintiff or shall
consolidate his action, if brought independently.
3854. If the action is prosecuted by the employer alone, evidence
of any amount which the employer has paid or become obligated to pay
by reason of the injury or death of the employee is admissible, and
such expenditures or liability shall be considered as proximately
resulting from such injury or death in addition to any other items of
damage proximately resulting therefrom.
3855. If the employee joins in or prosecutes such action, either
the evidence of the amount of disability indemnity or death benefit
paid or to be paid by the employer or the evidence of loss of earning
capacity by the employee shall be admissible, but not both. Proof of
all other items of damage to either the employer or employee
proximately resulting from such injury or death is admissible and is
part of the damages.
3856. In the event of suit against such third party:
(a) If the action is prosecuted by the employer alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employer's attorney in effecting recovery both for the benefit of the
employer and the employee. After the payment of such expenses and
attorney's fees, the court shall apply out of the amount of such
judgment an amount sufficient to reimburse the employer for the
amount of his expenditure for compensation together with any amounts
to which he may be entitled as special damages under Section 3852 and
shall order any excess paid to the injured employee or other person
entitled thereto.
(b) If the action is prosecuted by the employee alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employee's attorney in effecting recovery both for the benefit of the
employee and the employer. After the payment of such expenses and
attorney's fee the court shall, on application of the employer, allow
as a first lien against the amount of such judgment for damages, the
amount of the employer's expenditure for compensation together with
any amounts to which he may be entitled as special damages under
Section 3852.
(c) If the action is prosecuted both by the employee and the
employer, in a single action or in consolidated actions, and they are
represented by the same agreed attorney or by separate attorneys,
the court shall first order paid from any judgment for damages
recovered, the reasonable litigation expenses incurred in preparation
and prosecution of such action or actions, together with reasonable
attorneys' fees based solely on the services rendered for the benefit
of both parties where they are represented by the same attorney, and
where they are represented by separate attorneys, based solely upon
the service rendered in each instance by the attorney in effecting
recovery for the benefit of the party represented. After the payment
of such expenses and attorneys' fees the court shall apply out of the
amount of such judgment for damages an amount sufficient to
reimburse the employer for the amount of his expenditures for
compensation together with any other amounts to which he may be
entitled as special damages under Section 3852.
(d) The amount of reasonable litigation expenses and the amount of
attorneys' fees under subdivisions (a), (b), and (c) of this section
shall be fixed by the court. Where the employer and employee are
represented by separate attorneys they may propose to the court, for
its consideration and determination, the amount and division of such
expenses and fees.
3857. The court shall, upon further application at any time before
the judgment is satisfied, allow as a further lien the amount of any
expenditures of the employer for compensation subsequent to the
original order.
3858. After payment of litigation expenses and attorneys' fees
fixed by the court pursuant to Section 3856 and payment of the
employer's lien, the employer shall be relieved from the obligation
to pay further compensation to or on behalf of the employee under
this division up to the entire amount of the balance of the judgment,
if satisfied, without any deduction. No satisfaction of such
judgment in whole or in part, shall be valid without giving the
employer notice and a reasonable opportunity to perfect and satisfy
his lien.
3859. (a) No release or settlement of any claim under this chapter
as to either the employee or the employer is valid without the
written consent of both. Proof of service filed with the court is
sufficient in any action or proceeding where such approval is
required by law.
(b) Notwithstanding anything to the contrary contained in this
chapter, an employee may settle and release any claim he may have
against a third party without the consent of the employer. Such
settlement or release shall be subject to the employer's right to
proceed to recover compensation he has paid in accordance with
Section 3852.
3860. (a) No release or settlement under this chapter, with or
without suit, is valid or binding as to any party thereto without
notice to both the employer and the employee, with opportunity to the
employer to recover the amount of compensation he has paid or become
obligated to pay and any special damages to which he may be entitled
under Section 3852, and opportunity to the employee to recover all
damages he has suffered and with provision for determination of
expenses and attorney's fees as herein provided.
(b) Except as provided in Section 3859, the entire amount of such
settlement, with or without suit, is subject to the employer's full
claim for reimbursement for compensation he has paid or become
obligated to pay and any special damages to which he may be entitled
under Section 3852, together with expenses and attorney fees, if any,
subject to the limitations in this section set forth.
(c) Where settlement is effected, with or without suit, solely
through the efforts of the employee's attorney, then prior to the
reimbursement of the employer, as provided in subdivision (b) hereof,
there shall be deducted from the amount of the settlement the
reasonable expenses incurred in effecting such settlement, including
costs of suit, if any, together with a reasonable attorney's fee to
be paid to the employee's attorney, for his services in securing and
effecting settlement for the benefit of both the employer and the
employee.
(d) Where settlement is effected, with or without suit, solely
through the efforts of the employer's attorney, then, prior to the
reimbursement of the employer as provided in subdivision (b) hereof,
there shall be deducted from the amount of the settlement the
reasonable expenses incurred in effecting such settlement, including
costs of suit, if any, together with a reasonable attorney's fee to
be paid to the employer's attorney, for his services in securing and
effecting settlement for the benefit of both the employer and the
employee.
(e) Where both the employer and the employee are represented by
the same agreed attorney or by separate attorneys in effecting a
settlement, with or without suit, prior to reimbursement of the
employer, as provided in subdivision (b) hereof, there shall be
deducted from the amount of the settlement the reasonable expenses
incurred by both the employer and the employee or on behalf of
either, including costs of suit, if any, together with reasonable
attorneys' fees to be paid to the respective attorneys for the
employer and the employee, based upon the respective services
rendered in securing and effecting settlement for the benefit of the
party represented. In the event both parties are represented by the
same attorney, by agreement, the attorney's fee shall be based on the
services rendered for the benefit of both.
(f) The amount of expenses and attorneys' fees referred to in this
section shall, on settlement of suit, or on any settlement requiring
court approval, be set by the court. In all other cases these
amounts shall be set by the appeals board. Where the employer and the
employee are represented by separate attorneys they may propose to
the court or the appeals board, for consideration and determination,
the amount and division of such expenses and fees.
3861. The appeals board is empowered to and shall allow, as a
credit to the employer to be applied against his liability for
compensation, such amount of any recovery by the employee for his
injury, either by settlement or after judgment, as has not
theretofore been applied to the payment of expenses or attorneys'
fees, pursuant to the provisions of Sections 3856, 3858, and 3860 of
this code, or has not been applied to reimburse the employer.
3862. Any employer entitled to and who has been allowed and has
perfected a lien upon the judgment or award in favor of an employee
against any third party for damages occasioned to the same employer
by payment of compensation, expenses of medical treatment, and any
other charges under this act, may enforce payment of the lien against
the third party, or, in case the damages recovered by the employee
have been paid to the employee, against the employee to the extent of
the lien, in the manner provided for enforcement of money judgments
generally.
3864. If an action as provided in this chapter prosecuted by the
employee, the employer, or both jointly against the third person
results in judgment against such third person, or settlement by such
third person, the employer shall have no liability to reimburse or
hold such third person harmless on such judgment or settlement in
absence of a written agreement so to do executed prior to the injury.
3865. Any judgment or settlement of an action as provided for in
this chapter is, upon notice to the court, subject to the same lien
claims of the Employment Development Department as are provided for
in Chapter 1 (commencing with Section 4900) of Part 3, and shall be
allowed by the court as it determines necessary to avoid a
duplication of payment as compensation to the employee for lost
earnings.
3850. As used in this chapter:
(a) "Employee" includes the person injured and any other person to
whom a claim accrues by reason of the injury or death of the former.
(b) "Employer" includes insurer as defined in this division.
(c) "Employer" also includes the Self-Insurers' Security Fund,
where the employer's compensation obligations have been assumed
pursuant to Section 3743.
3851. The death of the employee or of any other person, does not
abate any right of action established by this chapter.
3852. The claim of an employee, including, but not limited to, any
peace officer or firefighter, for compensation does not affect his or
her claim or right of action for all damages proximately resulting
from the injury or death against any person other than the employer.
Any employer who pays, or becomes obligated to pay compensation, or
who pays, or becomes obligated to pay salary in lieu of compensation,
or who pays or becomes obligated to pay an amount to the Department
of Industrial Relations pursuant to Section 4706.5, may likewise make
a claim or bring an action against the third person. In the latter
event the employer may recover in the same suit, in addition to the
total amount of compensation, damages for which he or she was liable
including all salary, wage, pension, or other emolument paid to the
employee or to his or her dependents. The respective rights against
the third person of the heirs of an employee claiming under Section
377.60 of the Code of Civil Procedure, and an employer claiming
pursuant to this section, shall be determined by the court.
3853. If either the employee or the employer brings an action
against such third person, he shall forthwith give to the other a
copy of the complaint by personal service or certified mail. Proof of
such service shall be filed in such action. If the action is brought
by either the employer or employee, the other may, at any time
before trial on the facts, join as party plaintiff or shall
consolidate his action, if brought independently.
3854. If the action is prosecuted by the employer alone, evidence
of any amount which the employer has paid or become obligated to pay
by reason of the injury or death of the employee is admissible, and
such expenditures or liability shall be considered as proximately
resulting from such injury or death in addition to any other items of
damage proximately resulting therefrom.
3855. If the employee joins in or prosecutes such action, either
the evidence of the amount of disability indemnity or death benefit
paid or to be paid by the employer or the evidence of loss of earning
capacity by the employee shall be admissible, but not both. Proof of
all other items of damage to either the employer or employee
proximately resulting from such injury or death is admissible and is
part of the damages.
3856. In the event of suit against such third party:
(a) If the action is prosecuted by the employer alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employer's attorney in effecting recovery both for the benefit of the
employer and the employee. After the payment of such expenses and
attorney's fees, the court shall apply out of the amount of such
judgment an amount sufficient to reimburse the employer for the
amount of his expenditure for compensation together with any amounts
to which he may be entitled as special damages under Section 3852 and
shall order any excess paid to the injured employee or other person
entitled thereto.
(b) If the action is prosecuted by the employee alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employee's attorney in effecting recovery both for the benefit of the
employee and the employer. After the payment of such expenses and
attorney's fee the court shall, on application of the employer, allow
as a first lien against the amount of such judgment for damages, the
amount of the employer's expenditure for compensation together with
any amounts to which he may be entitled as special damages under
Section 3852.
(c) If the action is prosecuted both by the employee and the
employer, in a single action or in consolidated actions, and they are
represented by the same agreed attorney or by separate attorneys,
the court shall first order paid from any judgment for damages
recovered, the reasonable litigation expenses incurred in preparation
and prosecution of such action or actions, together with reasonable
attorneys' fees based solely on the services rendered for the benefit
of both parties where they are represented by the same attorney, and
where they are represented by separate attorneys, based solely upon
the service rendered in each instance by the attorney in effecting
recovery for the benefit of the party represented. After the payment
of such expenses and attorneys' fees the court shall apply out of the
amount of such judgment for damages an amount sufficient to
reimburse the employer for the amount of his expenditures for
compensation together with any other amounts to which he may be
entitled as special damages under Section 3852.
(d) The amount of reasonable litigation expenses and the amount of
attorneys' fees under subdivisions (a), (b), and (c) of this section
shall be fixed by the court. Where the employer and employee are
represented by separate attorneys they may propose to the court, for
its consideration and determination, the amount and division of such
expenses and fees.
3857. The court shall, upon further application at any time before
the judgment is satisfied, allow as a further lien the amount of any
expenditures of the employer for compensation subsequent to the
original order.
3858. After payment of litigation expenses and attorneys' fees
fixed by the court pursuant to Section 3856 and payment of the
employer's lien, the employer shall be relieved from the obligation
to pay further compensation to or on behalf of the employee under
this division up to the entire amount of the balance of the judgment,
if satisfied, without any deduction. No satisfaction of such
judgment in whole or in part, shall be valid without giving the
employer notice and a reasonable opportunity to perfect and satisfy
his lien.
3859. (a) No release or settlement of any claim under this chapter
as to either the employee or the employer is valid without the
written consent of both. Proof of service filed with the court is
sufficient in any action or proceeding where such approval is
required by law.
(b) Notwithstanding anything to the contrary contained in this
chapter, an employee may settle and release any claim he may have
against a third party without the consent of the employer. Such
settlement or release shall be subject to the employer's right to
proceed to recover compensation he has paid in accordance with
Section 3852.
3860. (a) No release or settlement under this chapter, with or
without suit, is valid or binding as to any party thereto without
notice to both the employer and the employee, with opportunity to the
employer to recover the amount of compensation he has paid or become
obligated to pay and any special damages to which he may be entitled
under Section 3852, and opportunity to the employee to recover all
damages he has suffered and with provision for determination of
expenses and attorney's fees as herein provided.
(b) Except as provided in Section 3859, the entire amount of such
settlement, with or without suit, is subject to the employer's full
claim for reimbursement for compensation he has paid or become
obligated to pay and any special damages to which he may be entitled
under Section 3852, together with expenses and attorney fees, if any,
subject to the limitations in this section set forth.
(c) Where settlement is effected, with or without suit, solely
through the efforts of the employee's attorney, then prior to the
reimbursement of the employer, as provided in subdivision (b) hereof,
there shall be deducted from the amount of the settlement the
reasonable expenses incurred in effecting such settlement, including
costs of suit, if any, together with a reasonable attorney's fee to
be paid to the employee's attorney, for his services in securing and
effecting settlement for the benefit of both the employer and the
employee.
(d) Where settlement is effected, with or without suit, solely
through the efforts of the employer's attorney, then, prior to the
reimbursement of the employer as provided in subdivision (b) hereof,
there shall be deducted from the amount of the settlement the
reasonable expenses incurred in effecting such settlement, including
costs of suit, if any, together with a reasonable attorney's fee to
be paid to the employer's attorney, for his services in securing and
effecting settlement for the benefit of both the employer and the
employee.
(e) Where both the employer and the employee are represented by
the same agreed attorney or by separate attorneys in effecting a
settlement, with or without suit, prior to reimbursement of the
employer, as provided in subdivision (b) hereof, there shall be
deducted from the amount of the settlement the reasonable expenses
incurred by both the employer and the employee or on behalf of
either, including costs of suit, if any, together with reasonable
attorneys' fees to be paid to the respective attorneys for the
employer and the employee, based upon the respective services
rendered in securing and effecting settlement for the benefit of the
party represented. In the event both parties are represented by the
same attorney, by agreement, the attorney's fee shall be based on the
services rendered for the benefit of both.
(f) The amount of expenses and attorneys' fees referred to in this
section shall, on settlement of suit, or on any settlement requiring
court approval, be set by the court. In all other cases these
amounts shall be set by the appeals board. Where the employer and the
employee are represented by separate attorneys they may propose to
the court or the appeals board, for consideration and determination,
the amount and division of such expenses and fees.
3861. The appeals board is empowered to and shall allow, as a
credit to the employer to be applied against his liability for
compensation, such amount of any recovery by the employee for his
injury, either by settlement or after judgment, as has not
theretofore been applied to the payment of expenses or attorneys'
fees, pursuant to the provisions of Sections 3856, 3858, and 3860 of
this code, or has not been applied to reimburse the employer.
3862. Any employer entitled to and who has been allowed and has
perfected a lien upon the judgment or award in favor of an employee
against any third party for damages occasioned to the same employer
by payment of compensation, expenses of medical treatment, and any
other charges under this act, may enforce payment of the lien against
the third party, or, in case the damages recovered by the employee
have been paid to the employee, against the employee to the extent of
the lien, in the manner provided for enforcement of money judgments
generally.
3864. If an action as provided in this chapter prosecuted by the
employee, the employer, or both jointly against the third person
results in judgment against such third person, or settlement by such
third person, the employer shall have no liability to reimburse or
hold such third person harmless on such judgment or settlement in
absence of a written agreement so to do executed prior to the injury.
3865. Any judgment or settlement of an action as provided for in
this chapter is, upon notice to the court, subject to the same lien
claims of the Employment Development Department as are provided for
in Chapter 1 (commencing with Section 4900) of Part 3, and shall be
allowed by the court as it determines necessary to avoid a
duplication of payment as compensation to the employee for lost
earnings.
3850. As used in this chapter:
(a) "Employee" includes the person injured and any other person to
whom a claim accrues by reason of the injury or death of the former.
(b) "Employer" includes insurer as defined in this division.
(c) "Employer" also includes the Self-Insurers' Security Fund,
where the employer's compensation obligations have been assumed
pursuant to Section 3743.
3851. The death of the employee or of any other person, does not
abate any right of action established by this chapter.
3852. The claim of an employee, including, but not limited to, any
peace officer or firefighter, for compensation does not affect his or
her claim or right of action for all damages proximately resulting
from the injury or death against any person other than the employer.
Any employer who pays, or becomes obligated to pay compensation, or
who pays, or becomes obligated to pay salary in lieu of compensation,
or who pays or becomes obligated to pay an amount to the Department
of Industrial Relations pursuant to Section 4706.5, may likewise make
a claim or bring an action against the third person. In the latter
event the employer may recover in the same suit, in addition to the
total amount of compensation, damages for which he or she was liable
including all salary, wage, pension, or other emolument paid to the
employee or to his or her dependents. The respective rights against
the third person of the heirs of an employee claiming under Section
377.60 of the Code of Civil Procedure, and an employer claiming
pursuant to this section, shall be determined by the court.
3853. If either the employee or the employer brings an action
against such third person, he shall forthwith give to the other a
copy of the complaint by personal service or certified mail. Proof of
such service shall be filed in such action. If the action is brought
by either the employer or employee, the other may, at any time
before trial on the facts, join as party plaintiff or shall
consolidate his action, if brought independently.
3854. If the action is prosecuted by the employer alone, evidence
of any amount which the employer has paid or become obligated to pay
by reason of the injury or death of the employee is admissible, and
such expenditures or liability shall be considered as proximately
resulting from such injury or death in addition to any other items of
damage proximately resulting therefrom.
3855. If the employee joins in or prosecutes such action, either
the evidence of the amount of disability indemnity or death benefit
paid or to be paid by the employer or the evidence of loss of earning
capacity by the employee shall be admissible, but not both. Proof of
all other items of damage to either the employer or employee
proximately resulting from such injury or death is admissible and is
part of the damages.
3856. In the event of suit against such third party:
(a) If the action is prosecuted by the employer alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employer's attorney in effecting recovery both for the benefit of the
employer and the employee. After the payment of such expenses and
attorney's fees, the court shall apply out of the amount of such
judgment an amount sufficient to reimburse the employer for the
amount of his expenditure for compensation together with any amounts
to which he may be entitled as special damages under Section 3852 and
shall order any excess paid to the injured employee or other person
entitled thereto.
(b) If the action is prosecuted by the employee alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employee's attorney in effecting recovery both for the benefit of the
employee and the employer. After the payment of such expenses and
attorney's fee the court shall, on application of the employer, allow
as a first lien against the amount of such judgment for damages, the
amount of the employer's expenditure for compensation together with
any amounts to which he may be entitled as special damages under
Section 3852.
(c) If the action is prosecuted both by the employee and the
employer, in a single action or in consolidated actions, and they are
represented by the same agreed attorney or by separate attorneys,
the court shall first order paid from any judgment for damages
recovered, the reasonable litigation expenses incurred in preparation
and prosecution of such action or actions, together with reasonable
attorneys' fees based solely on the services rendered for the benefit
of both parties where they are represented by the same attorney, and
where they are represented by separate attorneys, based solely upon
the service rendered in each instance by the attorney in effecting
recovery for the benefit of the party represented. After the payment
of such expenses and attorneys' fees the court shall apply out of the
amount of such judgment for damages an amount sufficient to
reimburse the employer for the amount of his expenditures for
compensation together with any other amounts to which he may be
entitled as special damages under Section 3852.
(d) The amount of reasonable litigation expenses and the amount of
attorneys' fees under subdivisions (a), (b), and (c) of this section
shall be fixed by the court. Where the employer and employee are
represented by separate attorneys they may propose to the court, for
its consideration and determination, the amount and division of such
expenses and fees.
3857. The court shall, upon further application at any time before
the judgment is satisfied, allow as a further lien the amount of any
expenditures of the employer for compensation subsequent to the
original order.
3858. After payment of litigation expenses and attorneys' fees
fixed by the court pursuant to Section 3856 and payment of the
employer's lien, the employer shall be relieved from the obligation
to pay further compensation to or on behalf of the employee under
this division up to the entire amount of the balance of the judgment,
if satisfied, without any deduction. No satisfaction of such
judgment in whole or in part, shall be valid without giving the
employer notice and a reasonable opportunity to perfect and satisfy
his lien.
3859. (a) No release or settlement of any claim under this chapter
as to either the employee or the employer is valid without the
written consent of both. Proof of service filed with the court is
sufficient in any action or proceeding where such approval is
required by law.
(b) Notwithstanding anything to the contrary contained in this
chapter, an employee may settle and release any claim he may have
against a third party without the consent of the employer. Such
settlement or release shall be subject to the employer's right to
proceed to recover compensation he has paid in accordance with
Section 3852.
3860. (a) No release or settlement under this chapter, with or
without suit, is valid or binding as to any party thereto without
notice to both the employer and the employee, with opportunity to the
employer to recover the amount of compensation he has paid or become
obligated to pay and any special damages to which he may be entitled
under Section 3852, and opportunity to the employee to recover all
damages he has suffered and with provision for determination of
expenses and attorney's fees as herein provided.
(b) Except as provided in Section 3859, the entire amount of such
settlement, with or without suit, is subject to the employer's full
claim for reimbursement for compensation he has paid or become
obligated to pay and any special damages to which he may be entitled
under Section 3852, together with expenses and attorney fees, if any,
subject to the limitations in this section set forth.
(c) Where settlement is effected, with or without suit, solely
through the efforts of the employee's attorney, then prior to the
reimbursement of the employer, as provided in subdivision (b) hereof,
there shall be deducted from the amount of the settlement the
reasonable expenses incurred in effecting such settlement, including
costs of suit, if any, together with a reasonable attorney's fee to
be paid to the employee's attorney, for his services in securing and
effecting settlement for the benefit of both the employer and the
employee.
(d) Where settlement is effected, with or without suit, solely
through the efforts of the employer's attorney, then, prior to the
reimbursement of the employer as provided in subdivision (b) hereof,
there shall be deducted from the amount of the settlement the
reasonable expenses incurred in effecting such settlement, including
costs of suit, if any, together with a reasonable attorney's fee to
be paid to the employer's attorney, for his services in securing and
effecting settlement for the benefit of both the employer and the
employee.
(e) Where both the employer and the employee are represented by
the same agreed attorney or by separate attorneys in effecting a
settlement, with or without suit, prior to reimbursement of the
employer, as provided in subdivision (b) hereof, there shall be
deducted from the amount of the settlement the reasonable expenses
incurred by both the employer and the employee or on behalf of
either, including costs of suit, if any, together with reasonable
attorneys' fees to be paid to the respective attorneys for the
employer and the employee, based upon the respective services
rendered in securing and effecting settlement for the benefit of the
party represented. In the event both parties are represented by the
same attorney, by agreement, the attorney's fee shall be based on the
services rendered for the benefit of both.
(f) The amount of expenses and attorneys' fees referred to in this
section shall, on settlement of suit, or on any settlement requiring
court approval, be set by the court. In all other cases these
amounts shall be set by the appeals board. Where the employer and the
employee are represented by separate attorneys they may propose to
the court or the appeals board, for consideration and determination,
the amount and division of such expenses and fees.
3861. The appeals board is empowered to and shall allow, as a
credit to the employer to be applied against his liability for
compensation, such amount of any recovery by the employee for his
injury, either by settlement or after judgment, as has not
theretofore been applied to the payment of expenses or attorneys'
fees, pursuant to the provisions of Sections 3856, 3858, and 3860 of
this code, or has not been applied to reimburse the employer.
3862. Any employer entitled to and who has been allowed and has
perfected a lien upon the judgment or award in favor of an employee
against any third party for damages occasioned to the same employer
by payment of compensation, expenses of medical treatment, and any
other charges under this act, may enforce payment of the lien against
the third party, or, in case the damages recovered by the employee
have been paid to the employee, against the employee to the extent of
the lien, in the manner provided for enforcement of money judgments
generally.
3864. If an action as provided in this chapter prosecuted by the
employee, the employer, or both jointly against the third person
results in judgment against such third person, or settlement by such
third person, the employer shall have no liability to reimburse or
hold such third person harmless on such judgment or settlement in
absence of a written agreement so to do executed prior to the injury.
3865. Any judgment or settlement of an action as provided for in
this chapter is, upon notice to the court, subject to the same lien
claims of the Employment Development Department as are provided for
in Chapter 1 (commencing with Section 4900) of Part 3, and shall be
allowed by the court as it determines necessary to avoid a
duplication of payment as compensation to the employee for lost
earnings.
