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In re Conservatorship of the Person of Peterson10/31/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Jeri Peterson, conservator for her (now deceased) husband David Peterson, filed a petition in the probate court, alleging overpayment of monies to objector, California Insurance Guarantee Association (CIGA), pursuant to an agreement for CIGA to recover workers' compensation benefits (Labor Code, § 3852 et seq.) incurred on David Peterson's behalf, in the event David Peterson recovered damages in his lawsuit against third party tortfeasors. CIGA appeals from a court order for CIGA to refund to Jeri Peterson $333,553, less 25 percent of any medical expenses incurred by CIGA from October 29, 2003, to the time of David Peterson's death in February 2004. CIGA contends the agreement allowed it a credit against all future expenses up to an amount representing 25 percent of David Peterson's net recovery, and the court misinterpreted the agreement as limiting CIGA's recovery to 25 percent of medical expenses. We shall conclude CIGA fails to present an adequate record for reversal, and we shall therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In January 1998, David Peterson was injured at work. Because his employer's insurer was insolvent, CIGA paid his workers' compensation benefits. (Ins. Code, §§ 1063, 1063.5.) CIGA pursued a complaint in intervention in the Petersons' tort lawsuit against alleged third party tortfeasors (Peterson et al. v. Shapell Industries, Inc., et al., Santa Clara County Case No. CV779539).
On May 14, 2001 (before trial), CIGA and the Petersons reached an agreement, memorialized in a letter of the same date, prepared by CIGA's counsel. Pursuant to the agreement, (1) CIGA assigned to the Petersons its subrogation rights to recover from third party tortfeasors the monies CIGA paid for David Peterson's workers' compensation benefits, and (2) CIGA would receive from David Peterson's net recovery, in the tort suit, reimbursement on CIGA's workers' compensation lien and a credit against future benefits to be paid by CIGA for David Peterson. (Labor Code, §§ 3852 [right to reimbursement], 3861 [right to a credit to be applied against future payment of benefits, to be authorized by Workers' Compensation Appeals Board]; California Ins. Guarantee Assn. v. Superior Court (1998) 64 Cal.App.4th 219, 229 [CIGA may recover workers' compensation payments it made for employer's insolvent insurer].)
At issue in this appeal is the interpretation of the agreement, which stated in part:
"Intervenor assigns to plaintiffs David and Jeri Peterson Complaint in Intervention to prosecute in good faith against some or all of the defendants to this litigation. In so doing, it is the express intent of the parties to this agreement and assignment that plaintiffs will continue Intervenor's efforts to recover partial reimbursement of workers' compensation benefits previously paid to or on behalf of David Peterson, as well as to obtain a partial credit against Intervenor's future obligations to David Peterson with respect to payment of worker[s'] compensation benefits arising out of the incident giving rise to this litigation.
"With respect to any verdict obtained on behalf of David Peterson, Intervenor will take priority (after costs applicable to the prosecution of David Peterson's personal injury suit are deducted as provided herein) in recovering 25% of the workers' compensation lien as it stands at the t
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