BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1177|
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UNFINISHED BUSINESS
Bill No: SB 1177
Author: Leno (D)
Amended: 8/9/12
Vote: 21
SENATE LABOR & INDUSTRIAL REL. COMMITTEE : 5-0, 4/11/12
AYES: Lieu, Wyland, DeSaulnier, Leno, Yee
NO VOTE RECORDED: Padilla, Runner
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/17/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE FLOOR : 37-0, 4/26/12
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Corbett, Correa, De Le�n, DeSaulnier, Dutton,
Emmerson, Evans, Fuller, Gaines, Hancock, Harman,
Hernandez, Huff, Kehoe, La Malfa, Leno, Lieu, Liu,
Lowenthal, Negrete McLeod, Pavley, Price, Rubio,
Simitian, Steinberg, Vargas, Walters, Wolk, Wright,
Wyland, Yee
NO VOTE RECORDED: Padilla, Runner, Strickland
ASSEMBLY FLOOR : 75-1, 8/20/12 - See last page for vote
SUBJECT : Restitution for crime victims
SOURCE : San Francisco District Attorney
DIGEST : This bill provides that, in cases where an
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employer is convicted of a crime against an employee, a
payment to the employee or the employee's dependent that is
made by the employer's workers' compensation insurance
carrier shall not be used to offset the amount of a court's
restitution order unless the court finds substantial
evidence that all premiums for that insurance coverage have
been paid in full accordance with the law.
Assembly Amendments (1) revise and recast how insurance
premiums are paid and (2) add double-jointing language to
SB 1479 (Pavley) to become operative only if SB 1479 and
this bill are both chaptered and become effective on or
before January 1, 2013, and this bill is chaptered last.
ANALYSIS : Existing law establishes a workers'
compensation system that provides benefits to an employee
who suffers from an injury or illness that arises out of
and in the course of employment, irrespective of fault.
This system requires all employers to secure payment of
benefits by either securing the consent of the Department
of Industrial Relations to self-insure or by securing
insurance against liability from an insurance company duly
authorized by the state.
Existing law provides that, upon a person being convicted
of any crime in the State of California, the court, in
addition to any other penalty provided or imposed under the
law, must order the defendant to pay restitution fines,
depending on the nature and impact of the crime.
Existing law provides that, in the event of a compensable
industrial injury, the right to recover compensation
through the workers' compensation is the sole and exclusive
remedy of the employee or his/her dependents against the
employer and, with certain exceptions, the employee or
his/her dependents may not bring an action at law for
damages against the employer.
Exceptions include:
1. Where the employee's injury or death is proximately
caused by a willful physical assault by the employer;
(Labor Code (LAB) Section 3602)
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2. Where the employee's injury is aggravated by the
employer's fraudulent concealment of the existence of
the injury and its connection with the employment; (LAB
Section 3602)
3. Where the employer fails to secure workers' compensation
coverage for his/her employees; (LAB Section 3706)
4. Where the employee's injury or death is proximately
caused by the employer's knowing removal of, or knowing
failure to install, a point of operation guard on a
power press. (LAB Section 4558)
This bill provides that, in cases where an employer is
convicted of a crime against an employee, a payment to the
employee or the employee's dependent that is made by the
employer's workers' compensation insurance carrier shall
not be used to offset the amount of a court's restitution
order unless the court finds substantial evidence that all
premiums for that insurance coverage have been paid in full
accordance with the law.
Comments
This bill seeks to remedy a specific issue that came up in
the restitution phase of a recent court case, People v.
Shim, Kim, and California C&R, Inc. (2011). In that case,
Sam Shim and his company California C&R, Inc., pled guilty
to multiple felony counts in the death of Antonio Martinez,
an employee of California C&R. Mr. Martinez had fallen off
of a four-story apartment building in 2008.
As was discussed in the prosecution's brief, the details of
Mr. Martinez's working conditions, which directly
contributed to his death, were particularly horrendous.
Mr. Martinez had been employed by California C&R, Inc. for
over a decade, but his employer failed to report his
employment to either the Employment Development Department
or the State Compensation Insurance Fund (SCIF), instead
paying Mr. Martinez in cash. On the day of Mr. Martinez's
death, none of the roofers were wearing any form of fall
protection, there were no railings, scaffolds or other
physical barriers preventing a fall to the sidewalk, and
there was no supervision of work along the roof's edge.
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All of this was in violation of California Occupational
Safety and Health Administration (Cal/OSHA) regulations.
In 2011, Sam Shim pled guilty to four felonies (involuntary
manslaughter, willful violation of Cal/OSHA regulations
resulting in a death, workers' compensation fraud, and tax
fraud), California C&R pled guilty to one felony (willful
violation of Cal/OSHA regulations resulting in a death),
and the foreman at the time of the industrial death, Jwa
Kim, was convicted of a misdemeanor.
Despite these convictions, defendants were entitled to
offset their restitution obligations by the amount that
SCIF had paid the family in the workers' compensation
proceeding, which was $320,000. As a result, neither Shim
nor California C&R was required to pay restitution to Mr.
Martinez's family.
This is due to a court case, People v. Bernal (2002) 101
Cal. App.4th 155, which dealt with the ability of the
payments by a defendant's insurance company to offset debts
to a victim. That case, however, dealt with an intoxicated
driver and a car insurance policy. The workers'
compensation system, with its constitutional guarantees for
the "health and safety and general welfare of any and all
workers and those dependent upon them for support to the
extent of relieving from the consequences of any injury or
death incurred or sustained by workers in the course of
their employment" does not fit well into that case law.
This bill seeks to address the specific example of this
case by requiring that, in cases where an employer is
convicted of a crime against an employee, it would only be
appropriate for the court to offset a court's restitution
order unless the court finds substantial evidence that all
premiums for that insurance coverage have been made in full
accordance with the law as of the date of the crime. This
requirement would apply both in the event of an injury or
death from an industrial injury.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/20/12)
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San Francisco District Attorney (source)
California District Attorneys Association
California Labor Federation
Glendale City Employees Association
Los Angeles County District Attorney
Organization of SMUD Employees
San Bernardino Public Employees Association
San Francisco Chamber of Commerce
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
ASSEMBLY FLOOR : 75-1, 8/20/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Eng, Feuer, Fletcher, Fong, Fuentes, Beth Gaines,
Galgiani, Garrick, Gatto, Gordon, Grove, Hagman,
Halderman, Hall, Harkey, Hayashi, Hill, Huber, Hueso,
Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Nestande, Nielsen, Norby, Olsen, Pan, Perea, V.
Manuel P�rez, Portantino, Silva, Skinner, Smyth, Solorio,
Swanson, Torres, Valadao, Wagner, Wieckowski, Williams,
Yamada, John A. P�rez
NOES: Morrell
NO VOTE RECORDED: Donnelly, Furutani, Gorell, Roger
Hern�ndez
PQ:k 8/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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