5500.5 and spreading the wealth of sovereign immunity (Part 1)
We’ve all been there. What began with a firm row of phalanx shields facing an advancing asbestos applicant devolved into a crowded hearing room with a dozen or more other defense attorneys, glancing left and right while getting ready for the feeding frenzy to begin. None of our clients are truly at fault – the culprit employer, with the most years of exposure, the highest degree of fault, and the § 5500.5 liability for exposure is clear to everyone. Or rather, the would-be exposure, fault and liability. The attorney for this employer sits comfortably in the hearing room, swapping chuckle-inducing text-messages on her blackberry or twittering away on his laptop. This attorney, who by all accounts of fairness or decency should be preparing to bite the bullet and lead the defense against the applicant’s claims, feels not the slightest degree of pressure.
The applicant, of course, worked for some aspect of the Federal Government, building ships or delivering mail. The lawyer, without looking up from her calendar as she scribbles down lunch plans, merely says the magic words that keep her from lifting a legal finger: sovereign immunity. You see, after all, the King can do no wrong.
Left at this point, California Workers’ Compensation law sometimes leaves the unlucky employers that have their shops set up along Applicant’s Memory Lane, in some extreme cases responsible for 1% of the exposure amongst themselves, to foot the entire bill. Soon comes the puffery of settlement and the melee of negotiation. “Cough up the money! I know your client’s got it!” “We’re just ten grand away from settling this thing, pay your fair share.” Suddenly, the bonds of brotherhood uniting defense attorneys against the flood of applicants coming for their clients is gone, as the equally blameless defendants scatter to avoid being the “target.”
I’ve talked about a tool you can use to put some pebbles in the boots of lien-claimants. With the stage now set, on Tuesday I’ll tell you about a big rock to toss in the shoe of an asbestos (or other) applicant.