morning good morning on earth may please the court jason goldstein of buchalter namer on behalf of petitioner of the travelers and dennehy company there's no dispute the remedy traveler seeks under labor code fifty five hundred point five day and thirty hope well what this case about is whether or not an illegally uninsured employer like the saints gets the benefit of the workers compensation bargain when an insured employer fortuitously employs the same employee during the last year the answer is no they don't get that bargain and i can give the court two reasons why please do the first reason is that when the district court limited travellers to the workers compensation system it provided the benefit point five a you can seek remedies in the worker's compensation court and the district court at the same time because they provide two separate remedies the worker's compensation system provides compensation if does not provide damages the statutes fifty five hundred point by they and thirty seven zero six specifically provide for reimbursement and subrogation to the rights of the employee when an insured employer pays workers compensation benefits the question that's presented here the elephant in the room is what happens when there are two employers in the in the last year one uninsured one insured the answer that question is the actual statute itself the third paragraph of labor code fifty five hundred point five a specifically provides that if one insured and insured employer pays benefits to a ploy or during the quote last year and quote it has a right of reimbursement against the employer's plural during that last year i want to get the plural part where does it come from it states in the third paragraph fifty five hundred point five a that after you know a payment is made shall be entitled to reimbursement from the employers who are unlawfully uninsured during the last year to be able to make it that in this last year is a judicial construct and if there couldn't be  employers during that last year and one of which could seek reimbursement from the other that would render the surplusage and in fact to get the erroneous result the district court reach you have to put in the word different before the last year that would be rewriting the statute and in doing so would be improper and i would also like to say that in the ninth circuit court of appeal opinion up in re george it dealt with this exact same situation i'll admit it was in conjunction with an excise tax but this analysis was critical to its conclusion and that was that if there are two employers in the same last year one of which is insured one of which isn't which was like travelers here insured saints here illegally uninsured forgive me council tax issues and the worker's comp issue are quite different thing not in this situation your honor because it all dealt with whether or not the treatment of the payment of workers compensation benefits would be dealt with and i think the proceeding i mean the critical and that what what i'm my point is simply this that in its wisdom the the political branches of the california government have concluded that matters related to employee injuries are to be handled almost exclusively by the board they don't want to in the court system here you've got a reimbursement there is a provision in the statute where under certain certain minces you are entitled as the pay or if you will this issue ation to reimbursement the question is whether you fit and that situation i personally don't see how the georgia case helps you because it's such a very different factual construct can you tell me based on any case that is on all fours with these facts where the if you will party in your client's situation was entitled to reimbursement the the closest case is in re george and i would proffer that it is directly on point upon nope it relied on labor code fifty five hundred point five a thirty seven zero six your honor and utilize that as the exact example to apply because if there wasn't this basis where there could be two separate employers during the same year one insured one uninsured then there was a chance it could have been an excise tax that would have been a totally different conclusion in that case it is thus critical to the fact the ninth circuit has interpreted the statute in this manner that there could be a situation in which there  one uninsured employer and one lawfully insured employer in the same year and that the insured employer can recover benefits and this is also consistent with public policy and legislative intent the legislature of california has specifically determined that those who pay unlawfully are insured get the benefits of the workers compensation that is immunity from tort liability those employers who do not like the saints in this instance do not get the benefit of that worker's compensation bargain and an employer who has to pay pain benefits like travelers here is entitle to pursue subrogation claims that opens up all sorts of remedies that are not provided by the workers compensation appeals board and you get a presumption of negligence and you get the full range of  damages this provides a penalty and rationale for other employers to make sure they're insured to comply with california's workers compensation system this is then this right to come back to five hundred  the preceding paragraph says the in the event none of the employers that's not the situation none of the employers during the period  is insured then you go back to the prior years and when you till you find the first employer who was insured right that's that was structure correct in part there's also jurisdiction as well as other areas i mean i think you should mean a question and then the next paragraph so then the next paragraph  any employer held liable as a result of another employer's failure show be entitled to reimbursement and then you emphasize shall be subrogated to the rights to the employee against the unlawfully insured employers but this whole section is dealing with a situation where neither of the employers during the relevant time per period were insured that's not the situation well there's not insured and jurisdiction there were other teams that example mr wark played and based on the patterson case in the worker's comp you have to have jurisdiction  the employer's is plural in the suit you read your honor i would disagree because the last year is the judicially created last year and as discussed in resorts there could be two employers during that last year one insured one uninsured but i would think the public fifty five hundred point five a though deal with the situation when there when when you have a reimbursement for somebody who you get to employ one is not covered in this case you got both teams don't fit that definition so how does it apply here the definition meaning they were the employer in the judicially constructed last year one insured one uninsured it got pushed back in either way with construing the statute in in accord with in re george as well as the public policy of uninsured employers don't get the benefit of worker's compensation it makes sense and if you have to determine the last year there can only be one last year under the worker's compensation system that's just how it works your honor and therefore right you use of your time let's hear from the other side as far as the dismissal being on both grounds honestly i was prepared to argue the statute and all the issues that go along without it so i will defer to the judge on that one too to hit some of the high points here if you don't know whether we have subject matter jurisdiction case travels was held liable because of a legally uninsured employer in this situation travelers was in the last year and therefore they resolve the claim and they paid it so this claim at best is an apportionment claim which is under fifty five hundred point five c and e as a judge pointed out and once you're under in a portion that claim that there is only jurisdiction before the top you see a b for that kind of claim very simply that's those are the facts here there are there are no facts that issue and coverage before the w c b if they choose to do so i would say that we would not even get there in this case because the fact show in the allegations show that the only employer in the last year with that was the chiefs so we don't even get back to the scenes in this council your opposition side of the case called and rate george what's your take on that case yeah i read that case multiple times and i don't see any application of that case to our facts here that apply to that analysis your honor at least i've read that case several times and i do not see any application here in that analogy says that it construed that statute you agree with you know what  does it construe in my sense is just trying to figure out whether that payment would qualify as an excise tax on the bankruptcy code and i am not going to profess in a bankruptcy expert but i said going through that case i don't see how and this can't be a push back according to me and therefore the analysis that they come up with and apply exactly and it's in fact there's that were actually two employees that the saints also did have insurance at this at that point in time but for purposes of argument here there's no question that the chiefs through travelers had insurance and therefore at best were under apportionment case i think the pleadings make clear that what travelers have sought here is a percentage and what you're talking about a percentage you're going to apportion in contribution you're not into a reimbursement situation would you comment on what the board has done if anything at this point regarding this claim now what's the board hasn't done anything because after the travelers settled which is a different situation from someone seeking tort damage or an employee seeking toward damages under thirty seven zero six we have a settlement here in the w c a be it travels would never be able to step in and bring those kind of tort claims because we would have resit resolution all we're talking about is how that resolution that payment of money will be split up i don't pression from reading the briefs that the board had taken an action that travelers was that in that they reserve the right to seek a portion of contribution to the saints but what happened was judge mark found coverage under the same policy and at that point that hasn't moved forward because in travelers decided to come to federal court to try to get times going to shore graphic arts in the portland trailblazers case makes clear that the procedures before the w c supposed to be speedy efficient this whole process was set up so that you don't have a lot of insurance companies dragging out the process the portal cases that insurance is supposed to prevent insurance carriers from complicating the litigation process and delaying the provision of benefits for the injured worker what has happened here is exactly the opposite those cases went dead and as travelers has mentioned there's about ten other cases which tr trying to raise the same issues all the all the applicants counsels in this case the injured football players councils have been waiting around now for two and a half years because this case was recently filed summer two thousand and thirteen so all those cases are or are expected we stayed because no one wants to spend more time in those cases in an intervening period one of those claims was can stabler he has since passed away and that's part of the problem we have here that system is set up to officially deal with coverage to get applicants paid and that's why we shouldn't be in federal court two and a half years later when they have a speedy resolution there they can raise all these issues there they can claim apportionment they can raise coverage if they believe that to be the case and they're doing a disservice to the applicants there which is the whole point of b c a b is to make sure those people are paid and paid in a timely fashion on one other question there was a suggestion that travers was forum shopping where did that come from well it because of that intervening finding of judge mark on the coverage once they had that adverse or in our case to the saints a finding that the saints were covered therefore not illegally uninsured and as travelers puts in their brief illegally well the problem is that the the judge the judge who they have watts of experience in these matters they understand the last year there's no faith last year all those issues are have the judges have the expertise and once that decision came down that found coverage under that same policy travelers plainly didn't want to be before the b c b and before the judge there that he determined coverage here so therefore they went to federal court and that's why we're calling it form shopping which is what judge state also found is that they went in that direction at that point judicially created last year most of visitors to your honor what i meant by that is that there is a real last year when it's that actual year the last the employee actually played in this case a professional sport yeah when there is no personal jurisdiction or not the judge in that instance has to decide take certain determinations that is provided by the statute itself but it's the worker's compensation judge has to make that decision and that's what i would also like just to point out that the second paragraph of fifty five hundred point five a is not required to get to the third part they are separate and distinct sub parts of the statute and therefore as long as you're in that last particular situation where one insured employer pays benefits that all or parts have been paid by an illegally uninsured employer able to recover reimbursement separation so you're i gather your primary position here is that there there is there is pushback under th statute and your opposition says there is none because one of the employers had insurance and that's covered under the code you say there is why is that well there's pushback because the player actually continued playing in one thousand nine hundred nine and this deals with the period of approx one thousand nine hundred eighty seven so there was no jurisdiction in california over the last employer there the cincinnati bengals so then you have to go back and that's this patterson worker's comp case cited in the papers and you have to keep going back and back and back until you have both jurisdiction and insurance that's why there is a push back and there is a quote the pain of them since you raised the bangles did you raise that argument below that  s employed by the bengals in one thousand nine hundred ninety floating that for the first time on appeal that was one of the amendments we said we could make to explain what actually happened here use the phrase in person the pertinent timeframe was this i thought that may have assisted to leading toward the district court's erroneous order and so if we were we believe that the district court's order should be reversed but if we were allowed leave to amend we would add facts including that this was there was