and here we are now back to our our recess and ready to proceed with the case of beverly hale versus bay by system san francisco ship rebuttal do the best i'll try to track your time as well but do the best you can check i think you thank you appreciated all we are asking is that the this forfeiture provision which the supreme court has already termed harsh in in congress and a trap for the unwary but as hell that it has to be applied according to its terms we ask only that it not be applied beyond those terms the benefits review board said decision in this case in the verdugo g case the sole issue is whether claimant or someone with the authority to do so on her behalf quote entered into a settlement with a rd person if she did section thirty three dollars g bars or climb if she did not her claim under section mind would not be barred would completely agree with that what we don't agree with is the proposition that she inadvertently entered into a settlement which she never signed which she never was a party to litigation of that and any rd party case and of which she received no benefits whatsoever from the inception she did her very best to remove herself from any tort litigation against the asbestos defense she wanted to preserve her right to her long shore death benefits remedy other members of her family had no longer sure death benefits remedy so they of course did want to pursue  parties for wrongful death the a l j relied simply on the fact that some of the releases a couple of the releases referred to heirs of the deceit and the other errors were all listed as parties to the wrongful death proceedings and the release was not the excuse me the release was on behalf of the named plaintiffs which were the other family members but not mrs hale we review the board's decision for substantial evidence now it's a no actually that's not true the board has hale was i think it's maybe fair to say less than credible in terms of her knowledge about these rd party settlements well he doesn't actually make any finding contrary to her testimony yes he said it's diminished credibility because he couldn't believe that she was as unfamiliar as she purported to be with the legal terminology she didn't understand for example what an error was well since the  releases referred to in error as defined by a certain section of the california procedural code of civil code apparently the lawyers they drafted that provision didn't know what an error was either because they're not defined in that provision they once once upon a time the wrongful death statute in california said the errors have the right to bring the proceedings that were the word air never was defined in the and the word does not even appear in that provision since then so that's not as obvious a proposition as the a l j seem to imagine it was but in any event as i say he  declared that her testimony was of compromised credibility but he did not make any finding that she was aware he certainly did not make any finding that she received anyone so those are finding  if he had made them we would have attacked the substantial evidence very basis for but he didn't make them anyway so is it undisputed between you and the other side here that the widows are the persons entitle to compensation for purposes of this act yes it is ok and so can you talk to me a little bit about the stat miller case ted miller case who in your mind would qualify as a represented in this case within the meaning of section thirty three no one would qualify as a representative within that the the the daughter who was of the deceit and so her acceptance of a settlement if it had not already been barred would have barred his rights to lifetime benefits disability benefits and medical benefits he had those rights he never asserted them instead he won the rd party tort action route and the st time he exceeded to a settlement with any one of those defendants that was the end of his long shore claim he had none and he never asserted one to the extent the daughter then signed a release as the personal representative of his estate again if he had not entered into any settlements before his death so as to bar his longshore client her actions as his personal representative would have barred the estates claim for his lifetime benefits of i well i'm still trying to figure out whether or not you know in this situation or are just whether the the deceit and daughter here is she the personal representative sounds like she's not or she is in terms of the section thirty three she or she because she was the successor in interest in the case the other civil action whether or not she is the legal representative of the deceased in that action and if so what does that mean and terms of being the personal representative in the case before us well i don't think there was any claim that she was the person representative she cannot have been the personal representative of all the errors in the lawsuits because of individual errors were named and if any one individual error is named under california wrongful death law then the personal representative of the state can only be there in that capacity but not as a personal representative of all the heirs that is if no one else had been named as plaintiffs in the wrongful death actions then she would have been she she the daughter i'm sorry she the daughter who appeared a personal representative successor interest to the deceit would have represented all the heirs and would have been entitled to sign a release on behalf of all the heirs that was not the situation because the what's the result from your client's point of view if instead of focusing on whether the widow of hale andrew the agreement which i take it is your focus in the appellate brief we focus on whether the daughter was a personal representative of the  no i don't think that that whether she was a personal representative that we don't contest that she had the status as a personal representative of the deceit but a settlement of the scholars of action would be completely irrelevant to the right of his widow to death benefits the person the person untitled the compensation now as to his lifetime benefits he was the person on title to compensation and by settling with any tortfeasor it gave up his right to a longshore remedy because it would be barred by section thirty three g but she was not the representative of  heirs only of the deceased and we know she could not have been of had the status as a as personal representative representing all of the heirs because individual heirs besides wrongful death action initially and she was named since she did declined to be a plaintiff she had to be named as a defendant the son also had not been breached so he had not agreed to be a plaintiff so he also had to be named initially in the complaint the wrongful death complaint as a defendant well he subsequently chimed in and said sure sure i went in and the amended complaint made him a plaintiff along with his sisters  but the widow instead of being transferred from defendant status to plaintiff status simply secured a dismissal of her dismissal from that lawsuit so she was not a party nor could the personal representative have been her representative in those brought in the wrongful death proceeding because as i say the other the other children were named individuals some of the personal representative could not represent all the heirs thank you can you do you want to reserve the balance of your time by yes please thank you type of litigation is very common interest worker plaintive rd party defendants and in the employer and carry with asserting whatever legal claims may just it's very frequent litigation here in california in for the life of me i couldn't figure out what he meant for a few days and i thought he said well act well on the facts and make up a case they pre death recoveries in this case these are fact excerpts of record page eighteen gross settlements that were before death in this case the sales case one hundred and twenty three thousand eight hundred and ninety one dollars the net recovery before the death of the employee was seventy four thousand eight hundred and forty seven dollars we all know in this room that there the widow is not entitled to any person title to compensation is not entitled to any benefits whatsoever for exposures occurring for death after she died the amount of money that we're discussing that was paid to the family members was four hundred dollars settlement or four hundred and fifty thousand seven hundred and fifty four dollars gross  fees of never recovery three thousand and ten dollars that was distributed equally among three children three adult children none to the allegedly none to the whe issue before this court as to how to apply section thirty three such that it protection the interest of the employer and carrier which the state of ca coward has said the employer and carrier are the real party in interest it's a it's a rarity among the workers compensation laws and certainly rare on the under the longshore act but the act is interpreted to protect the employer under section thirty three dollars and the carrier and its rare most and all workers compensation sessions as statutes are put put in place for to achieve humanitarian benefit as part of  socially approved goals in this instance section thirty three and two subsections that issues f a g are to protect the interest of the employer who may have paid some money and may not have the dance or the question about stud miller the and the claimants argument was basically that the widow and  been misinformed she claimed by or tourney warton act if the she knew that he was used to sign a release and she was aware that her attorney had dismissed the actions but the before doing so he had earmarked how much money would be paid on her behalf in this case this is hale has done everything possible she thinks or tried to convey that she's walking away from the interest of how to divvy up that four hundred and thirty thousand dollars in fact she did that with the goal of managing that the family affairs when asked about whether or not she consider herself to be the person in charge of the money that was received she said says that she was with it when questioned about if she understood how she was to perform exercises and responsibilities she said she was the person in charge she was also in charge and disbursement of the state compensation funds from her no other state for from another source so are you arguing then that the daughter was basically acting on and once i'd learned more about agency law and the ratification that was required then i understood her position was that she she should control the she agreed i was the one in charge of the disbursement of the funds it's the you you represented the family she said yes words to that effect and there's no doubt that the daughter was was acting as an agent for both her mother and the siblings so does that that mean that you're arguing that the daughter's under thirty three g is also the person's representative one could make that argument but i guess i'm wondering if you are making that are you are you making that argument well yes or no ok ok and the reason is because i think the widow can also be the press represented so the i don't know they were coming together combined but the family made a decision how to disperse the front and the person who admitted she was in charge of it really that when asked  daughter was asked about her role in this and she finally said i said well there's a few more my through questioning you about your role of a role in this with your mother and she said thank god they were involved heavily with each other and making is there anything beyond what you have just said that shows that there was an agency relationship is there anything that the daughter signed or that the at the yes side there are numerous releases  it was c b s s face or settle for seven thousand and c b s settled for two thousand those a settlement documents were signed by by the daughter and there's no evidence that the  that rule of law she was acting on behalf of her mother of spite the fact that the mother had said she just was not part of that lawsuit she had signed that documents to that effect both she didn't sign the documents with the sure had no troubles saying that she was in charge of post death affairs of this person the three children she was the one who's not mentioned by name so i think that covers the major points that wish to make the said there was a net recovery of seventy four thousand and three children divided gross one hundred and twenty three thousand any event that's all i have at this time of the i'd be happy to answer any more questions the trouble of it the trouble with this  that the claimants refused to recognize what the state of coward imposes it read the real party in interest is the employer the settlement the requirements and settlements be conducted in strict compliance with daughter but the daughter is a personal representative of the ceased what does that how does that affect the claims i don't think it has any effect because in effect the the daughter was signing on behalf of her mother and i and she did qualify and did qualify as a personal representative for those purposes s he was we argue is an alternative person represented but that argument is that the daughter would be a personal representative of the mother is that what you're saying as opposed to other to seat and now i think she can be qualified as for the deceit and there's the if you read through the details of their testimony both the two children becoming a does a person's representative come into play in here i mean is that just when the when the person entitle to compensation is deceased i think i could be wrong but i think that was a planned nine hundred and eighty two in minutes there were prior amendments and originally though it was the employee correct oh there's an entire bill to compensation was the employee correct correct all right and then it says in print c's or the person's representative that person's representative is the widow here correct yes that's yes ok so she's the person she's the person's representative yes all right and so if she's the look at the larger picture of how the person entitle to compensation must act under thirty three g one into the settlement is greater then the amount of compensation including the widow here settle for less than the way out they would be entitled to then the widow is we would be bar thank you very much our less church school has any other questions or church call no no further questions for me thank you thank you thank you and may it please the court i hope i can clear up a couple things during his life time mr hale was the person entitle to compensation disability benefits and medical benefits for the treatment of his employment related disease he never filed a claim for that because he was pursuing the tortfeasor and he had a better remedy against them than what he would have received in compensation for the period of his final disability and his medical benefits once he died his right to compensation passed to his a state if he had still had any right to compensation but it had already been foreclosed by his pre death se ents after he died the widow became a but at the time of his death became a person then titled the compensation in the end the only person and the only person the children were adults and not disabled not incapable self support so they were not entitled to anything on the the long sure act only the widow was which was why she sought to preserve that longshore death benefits remedy and not to take any part in the tort settlements and so once once he mr hale died then is it the person's representative who takes over his position takes over his position right so in this when we read the section yes and it says if the person entitled to compensation for the person's representative yes is there any way to read that that only the widow is the person's representative no there is not the widow never was appointed the personal representative of this state she simply was a widow she was qualified to seek wrongful death remedy person's representative for purposes of thirty three no no and if she had i mean the actions of the personal representative of the deceased would only bar the deceased rights and he wasn't seeking any he'd already foregone his longshore rights by seeking and settling toward actions sheik the to the extent there were rd party defendants who had not already settled with during his life time the personal representative of his estate was able to settle those actions but she couldn't settle the widow's rights to wrongful death rights because she did not have any authority to do so if she had done so and the widow had then accepted proceeds of such settlements well perhaps that would have been a ratification by the widow of the i stand simple agent daughter's actions in signing and signing away her wrongful death rights but that's not what happened she never got a penny from these settlements because she didn't want to have anything to do with them no the personal representative of the estate is the only thing that section thirty three g is referring to when it refers to a personal representative it's defined earlier in section thirty three personal representative means the personal representative of the deceased in a death case and she the daughter did become that before these settlements were the simple fact that i think the defendants are overlooking and perhaps the ael j and board were as well although that's been recognised lots of times in earlier cases in other circumstances this is section thirty three g yes thirty three dollars f gives the subrogation interest and rights against tortfeasor either for the injury with respect to the the workers lifetime rights or with respect to the the survivors in the case of a death section thirty three f gives a credit only for the recoveries by that person for that cause of action another words if the wife during the injured workers life time had brought a loss of consortium claim any recovery on that claim would not be creditable against her future potential rights to run put to death benefits because it's not for the same cause of actions not for the but it's not for the death and the recovery she has for the death would indeed be offset against their liability for death benefits so i think you did hate to keep going around and around the deceit would not be i went with us right ok so then in the daughter's capacity as persons representative is your argument then that she did not the widow entering into a settlement back to the statutory terms she didn't enter into that settlement again if she had accepted proceeds from those settlements arguably by doing that she ratifies the action of her daughter and would be barred under section thirty three dollars j but she did not there's not a shred of evidence that she received penny one she explicitly denied it the a l j didn't think she was very credible but there certainly was no evidence to the contrary and did not find to the contrary all right i think if i may just one final point the supreme court in the yates case which we've also cited made it clear and this court subsequently in force made it clear that section thirty the purpose of section thirty three dollars g generally to protect the employer against every or reduction  rights that general purpose is not coextensive with the scope of the provision that is if you settle the wrongful death rights before your spouse even dies which is allowed that recovery is not offset against your right to death benefits that's the supreme court in the yates case four or five years after they decided the coward case said we have to apply it according to its terms even though that result is sometimes harsh and coward but we also apply it in terms even though that does not really protect the employer's subrogation interest if the settlement of the wrongful death actions occur before the widow becomes a person entitle to compensation this is another instance in which the employer's right to  its liability under the act is prejudiced by some action in this case the failure to bring a wrongful death action by the widow thank you thank you  the case of beverly hills but a system san francisco ship repair incorporated submitted