The opinion
Filed 7/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LEANNE HOLLINGSWORTH et al., B306127
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC690999)
v.
HEAVY TRANSPORT, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael P. Vicencia, Judge. Affirmed.
Murray & Associates, Lawrence D. Murray for Plaintiffs
and Appellants.
Gray•Duffy, John Duffy, Michelle MacDonald; Black,
Compean & Hall, Frederick G. Hall for Defendants and
Respondents.
INTRODUCTION
In June 2016, Kirk Hollingsworth (Hollingsworth) was
involved in a fatal accident while working for defendant Heavy
Transport, Inc. (HT). Hollingsworth’s wife and son, plaintiffs
Leanne and Mark Hollingsworth, filed a wrongful death
complaint in superior court against HT and Bragg Investment
Company, Inc. (Bragg) (collectively, Bragg/HT; the parties
dispute whether the defendants are separate companies).
Plaintiffs alleged that HT lacked the required workers’
compensation insurance at the time of the incident, and therefore
plaintiffs were entitled to sue Bragg/HT under Labor Code
section 3706, which states, “If any employer fails to secure the
payment of compensation, any injured employee or his
dependents may bring an action at law against such employer for
damages . . . .” Bragg/HT then filed an application for
adjudication of claim with the Workers’ Compensation Appeals
Board (WCAB). Only one of these tribunals could have exclusive
jurisdiction over plaintiffs’ claims, and in our previous opinion,
Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927
(Hollingsworth I), we held that the superior court, which had
exercised jurisdiction first, should resolve the questions that
would determine which tribunal had exclusive jurisdiction over
plaintiffs’ claims.
Following remand, plaintiffs asserted they were entitled to
a jury trial on the factual issues that would determine
jurisdiction. The superior court denied plaintiffs’ request and
held a hearing in which it received evidence and heard testimony
regarding HT’s insurance status. The superior court determined
that HT was insured by a workers’ compensation policy at the
time of Hollingsworth’s death, and therefore the WCAB had
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exclusive jurisdiction over the matter. The court entered a
judgment terminating proceedings in the superior court, and
plaintiffs appealed.
Plaintiffs assert that they were entitled to a jury trial on
the fact issues that would determine jurisdiction. We disagree.
Although a jury may determine questions relevant to workers’
compensation exclusivity when the issue is raised as an
affirmative defense to common law claims, jurisdiction under
Labor Code section 3706 is an issue of law for the court to decide.
Plaintiffs also contend that the superior court erred in
considering parol evidence in interpreting the workers’
compensation insurance policy at issue. We find that the court’s
consideration of parol evidence was not erroneous, and that
substantial evidence supports the court’s findings. We therefore
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background facts and previous appellate opinion
On June 20, 2016, a Bragg/HT tractor-trailer was hauling a
large Bragg crane that had been used to hoist blades onto
electric-generating windmills in the Stockton area. Two tires on
the trailer failed, and Hollingsworth, who worked in maintenance
for HT, was called to the location to change the tires. After the
tires were changed and the tractor-trailer began traveling again,
a third tire failed. The rubber treads of the tire came loose and
wrapped around the axle of the trailer. Hollingsworth was again
called to the scene for repair. As Hollingsworth and the truck
driver attempted to free the rubber treads from the axle,
Hollingsworth was crushed, causing his death.
“As a general rule, an employee who sustains an industrial
injury ‘arising out of and in the course of the employment’ is
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limited to recovery under the workers’ compensation system.”
(Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995,
1001; see also Lab. Code, § 3600.) Private employers must either
carry workers’ compensation insurance or be self-insured. (Lab.
Code, § 3700, subds. (a), (b).) The WCAB has exclusive
jurisdiction over claims for workers’ compensation benefits. (La
Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.
(1994) 9 Cal.4th 27, 35.) If an employer fails to carry the
appropriate insurance, however, “any injured employee or his
dependents may bring an action at law against such employer for
damages” in superior court. (Lab. Code, § 3706.) “If at the time
of the accident there was no work[ers’] compensation coverage,
then the [WCAB] is without jurisdiction to grant relief, and if
there was such coverage then the superior court is without
jurisdiction and must leave the parties to pursue their remedies
before the [WCAB].” (Scott v. Industrial Acc. Commission (1956)
46 Cal.2d 76, 83 (Scott).)
Plaintiffs filed a wrongful death complaint in superior court
on January 22, 2018, alleging that Hollingsworth was in the
course of his employment with HT at the time of his death, and
that HT did not have workers’ compensation insurance.
Plaintiffs alleged that although Bragg purported to merge HT
“out of existence and into” Bragg in 1986, the two companies
maintained separate operations, and HT continued to operate as
a separate corporation. Plaintiffs alleged that Bragg paid them
workers’ compensation benefits, “evidencing the lack of Worker’s
Compensation Insurance for Kirk Hollingsworth as the
employee” of HT. Plaintiffs further alleged that the Bragg and
HT equipment involved in the incident was in a dangerous
condition, and that Bragg and HT failed to adequately train their
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workers, leading to Hollingsworth’s death. Plaintiffs included a
demand for jury trial with their complaint.
Bragg/HT demurred to plaintiffs’ complaint. It admitted
that Hollingsworth was working for HT at the time of his death.
But it asserted that HT was “a fictitious business name of
defendant Bragg Investment Company, Inc.,” so the companies
were in fact “the same company.” Bragg/HT contended that
“Bragg Investment Company, Inc. d/b/a Heavy Transport, Inc.”
had an active workers’ compensation policy that covered the
incident, so “plaintiffs’ lawsuit is barred in its entirety by the
Exclusive Remedy Rule of the Workers’ Compensation System
pursuant to Labor Code Sections 3601 and 3602.”
As stated in our previous decision, the trial court overruled
the demurrer, finding that plaintiffs had adequately alleged an
exception to workers’ compensation exclusivity by asserting that
HT did not have workers’ compensation insurance.
(Hollingsworth I, supra, 37 Cal.App.5th at p. 931.) The WCAB
then determined that the accident had occurred in the course of
employment, and set a hearing to determine if any workers’
compensation insurance covered the incident. (Ibid.) The parties
acknowledged that resolution of the insurance issue would
determine which tribunal had exclusive jurisdiction, and in a
series of motions and requests, Bragg/HT sought to stay
proceedings in the superior court until the WCAB made that
finding, while plaintiffs sought to stay the WCAB proceedings
until the superior court made that finding. (Id. at pp. 931-932.)
The superior court stayed all proceedings to allow the WCAB to
decide, and plaintiffs filed a petition for writ of mandate in this
court. (Id. at p. 933.) Following Scott, supra, 46 Cal.2d 76, we
held that the superior court, which had exercised jurisdiction
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first, “should make the necessary findings to determine which
tribunal has exclusive jurisdiction over the remainder of the
matter.” (Hollingsworth I, supra, 37 Cal.App.5th at p. 933.) We
remanded the case with instructions to the superior court to
“conduct further proceedings limited to determining which
tribunal has exclusive jurisdiction over plaintiffs’ claims.” (Id. at
p. 937.)
B. Plaintiffs’ request for a jury trial
Following remand, the superior court requested that the
parties submit briefs asserting their positions on jurisdiction.
Bragg/HT argued that jurisdiction was an issue of law for the
court to determine. It stated that a workers’ compensation policy
had been issued to Bragg by insurer XL Insurance America, Inc.
(XL Insurance), and HT was insured under the policy. Bragg/HT
submitted declarations and the insurance policy in support of its
contentions. It argued that because it carried workers’
compensation insurance at the time of Hollingsworth’s death, the
exception to workers’ compensation exclusivity did not apply, and
jurisdiction in the WCAB was appropriate.
Plaintiffs agreed that “[e]xclusive jurisdiction rests on the
presence or absence of the injured worker’s employer carrying
Worker’s Compensation Insurance for the injured employee at
the time and location of the injury.” They argued that this
question must be answered by a jury. Plaintiffs also contended
that the insurance policy covering Bragg did not include “(a)
Heavy Transport Inc[.], a California Corporation, [or] (b) any
company named Heavy Transport Inc[.], at a California location.”
Plaintiffs further asserted that there had been no “merger” of
Bragg and HT under California law, and whether the companies
were separate “should be part of the jury’s verdict.”
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At a hearing on November 22, 2019 before Judge Mark C.
Kim, the superior court noted that the Hollingsworth I opinion
remanded the case “to have a hearing and then make a
determination as to whether or not this court has the jurisdiction
or W.C.A.B. has the jurisdiction.” The court said the “one thing
[at] issue” was “whether or not defendants had workers’
compensation coverage for the plaintiff,” and “[i]f they did have
coverage, then . . . it goes to workers’ comp, W.C.A.B.; if there is
no workers’ comp insurance coverage for that plaintiff, then it
stays with this court.”
Plaintiffs’ counsel agreed with the court’s assessment, and
added, “But the decision-maker on that is the jury.” Plaintiffs’
counsel argued that the jurisdictional determination rested on
disputed fact issues, and plaintiffs had a right to have fact issues
decided by a jury. Counsel for Bragg/HT asserted that
jurisdiction was a legal issue for the court to decide.
The court held that plaintiffs were not entitled to a jury
trial on the jurisdiction question. The court noted that the
parties had submitted evidence in support of their positions, but
“my preference is to have live testimony, have witnesses come in
and testify.” The court set a “non-jury trial” for February 14,
2020.
Plaintiffs then filed a peremptory challenge to Judge Kim
under Code of Civil Procedure section 170.6, and the case was
reassigned to Judge Michael Vicencia. Plaintiffs filed an ex parte
application seeking an “order restoring right to a jury trial on all
claims.” They argued that Judge Kim “mistakenly decided” that
Hollingsworth I required that a bench trial determine the
jurisdiction issue. Plaintiffs asserted that the “case was set for
Court Trial in error as plaintiffs have never waived their right to
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a jury trial.” They further contended, “Any efforts at a court trial
on any contested issue of fact, such as the identify [sic] of the
employer and the presence of Worker’s Compensation for that
employer would likely result in a judgment void at the start.”
At the ex parte hearing on December 10, 2019, Judge
Vicencia questioned whether he could disturb the decision of
Judge Kim, and asked plaintiffs’ counsel, “Are you saying that
Judge Kim was wrong?” Plaintiffs’ counsel responded, “I’m
saying that Judge Kim said it will be decided by the court. It
didn’t say by a judge. Juries are part of the court.” Bragg/HT’s
counsel stated that the issue already had been decided by Judge
Kim. The court noted that juries sometimes decide issues of
workers’ compensation exclusivity, and stated that it appeared
that “[i]f we call it jurisdiction, then the judge decides. If we call
it an affirmative defense, then the jury decides.” Bragg/HT’s
counsel responded, “But the appellate court said it’s a
jurisdictional issue.”
The court also observed, “Requiring an affirmative defense
to be tried to a jury prior to plaintiff making their prima facie
showing strikes me as wrong on every level.” Plaintiffs’ counsel
said that was not what he was advocating; rather, “Plaintiff puts
on the negligence case, and plaintiff puts on the lack of comp and
the lack of merger and puts all that in their case in chief.” The
court said that in that case, the trial would not be limited to
jurisdiction, but “you’re talking about getting a trial date for the
whole shebang, and they can put this on as their affirmative
defense, right?” Plaintiffs’ counsel replied, “Exactly.” The court
noted that Hollingsworth I said “I have to limit it to the issue of
jurisdiction.”
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The court denied plaintiffs’ ex parte request. The court
stated, “I know that the date was set and it was called a nonjury
trial, but really, it is . . . an evidentiary hearing to determine
jurisdiction.” The court said it would keep the date set for the
hearing and allow witnesses to testify in person, but invited the
parties to “provide me as much as you can by way of brief. To the
extent that you can agree that declarations are sufficient, great.”
The court set a briefing schedule with plaintiffs filing first,
because they had the burden of proof.
C. Jurisdiction hearing
The parties set out their positions in documents titled “trial
briefs.” Plaintiffs asserted in their brief that Hollingsworth was
within the scope of his employment with HT at the time of his
death on June 20, 2016, and “[t]he main dispute here relates to
the contention that HT did not have Workers Compensation
Insurance at the time of his death.” They contended that
Hollingsworth’s paychecks, other work documents, uniforms, and
a collective bargaining agreement stated that HT was his
employer. The ownership documents for the maintenance truck
Hollingsworth drove and the tractor involved in the incident
listed HT as the owner; the trailer was registered to Bragg. The
relevant licenses and permits for the trip were in the name of HT.
Plaintiffs asserted that in the Occupational Safety and Health
Administration (OSHA) investigation following the incident, HT
“informed the OSHA board . . . that HT was the true employer
and that BRAGG had nothing to do with the circumstances
leading to Hollingsworth’s death.”
Plaintiffs asserted that HT “did not have in place a policy of
Worker’s Compensation Insurance in its name. Hence, this civil
suit under Labor Code Section 3706. The insurance policy in
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effect named an HT company in Oregon, but did not list nor
indicate coverage for any HT entity in California . . . .” Plaintiffs
asserted that HT and Bragg were not the same entity. They
further stated that checks for workers’ compensation benefits
paid to plaintiffs were in the name of Bragg, not HT. Plaintiffs
also contended that Bragg’s equipment involved in the incident
was defective, in that the tires on the trailer “were not capable of
carrying the weight of this 20 ton trailer with an 80 ton crane on
it.” No evidence was cited in plaintiffs’ brief.
Bragg/HT asserted in its trial brief that HT “is a DBA” of
Bragg, and at the time of the incident, “both Bragg Investment
Company and Heavy Transport were named insureds of a
workers compensation insurance policy issued by XL Insurance
America.” It stated that HT began as a California corporation in
1955 but “merged into” Bragg in November 1986; Bragg/HT
attached the fictitious business name statement filed for HT.
Bragg/HT described its application for workers’ compensation
insurance and attached the package submitted, which included a
schedule of named insureds. Bragg/HT stated that in the policy
active at the time of the incident, “[t]he applicant is Bragg
Investment Company Inc[.], but Heavy Transport is specifically
identified in the assigned risk section.” Bragg/HT submitted a
declaration by Thomas Poskus, a senior claims specialist with
“AXA XL,” the workers’ compensation carrier for HT. Poskus
stated that in May 2016, XL Insurance issued a workers’
compensation coverage policy to Bragg, and at the time of the
incident, HT was a named insured under the policy. Poskus
stated that XL Insurance “accepted coverage” for plaintiffs’ claim
and paid benefits to plaintiffs starting in July 2016.
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Bragg/HT also submitted the declaration of Gregory Stone,
a licensed insurance broker, whose company has “worked with
the various Bragg entities and dbas and divisions for decades.”
In May 2016, Stone’s company “placed Workers’ Compensation
insurance coverage for our client Bragg Investment Company,
Inc. with XL Insurance America, Inc.” Stone stated, “In the case
of Heavy Transport, the underwriters at XL America were
provided with a standard ACORD application which contained
the company’s payroll by classification, a loss history and a
Description of Operation Form. The underwriters used this
information to calculate a rating and determine the premiums
which contain a component specific to Heavy Transport.” Stone
stated that XL Insurance paid benefits on the Hollingsworth
claim under the policy, and “[t]here has never been a coverage
dispute regarding this claim.” The president of Bragg/HT, M.
Scott Bragg, stated in a declaration that Hollingsworth was
employed by HT, HT’s information was included in the
application for insurance, and at the time of the incident HT was
insured by XL Insurance. The general manager of HT, Robert
Weyers, stated in a declaration that HT was insured under the
XL Insurance policy at the time of the incident. A declaration by
a claims representative from a third-party administrator stated
that HT was a named insured under the XL Insurance policy,
benefits had been paid to Leanne Hollingsworth on the claim,
and benefits payments were ongoing.
Noting that one portion of the XL Insurance policy listed
Heavy Transport with an Oregon address, Bragg/HT asserted
that “Heavy Transport is not a company in Oregon—which was
clearly a typo in the named insureds section of the certified
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policy.” The Oregon address was for another Bragg company, the
“Bragg Cattle Ranch.”
However, Bragg/HT asserted that the intended insured was
made clear by information included in the application for
workers’ compensation insurance. HT’s Stockton work yard was
identified as one of the premises in the application, and HT’s
business was described in the application’s schedule of
operations. Bragg/HT also noted that the Stockton work yard—
where Hollingsworth worked—had a large sign with both Bragg
and HT names on it, the pickup truck that Hollingsworth drove
had the Bragg “B” logo on it, and Bragg issued Hollingsworth’s
W-2 forms.
Bragg/HT also asserted that because HT was a dba of
Bragg, it had an “automatic insured” status under the XL
Insurance policy, and it was not required to be separately listed,
even though it was. Because HT had workers’ compensation
insurance, Bragg/HT asserted that plaintiffs could not meet their
burden of showing the exception to workers’ compensation
exclusivity. It further argued that plaintiffs could not sue Bragg
for defective equipment because it was not a separate entity from
Hollingsworth’s employer. Bragg/HT argued that the action
should be dismissed for lack of jurisdiction, and that the WCAB
action should proceed.
In their reply brief, plaintiffs asserted there was no dispute
that HT employed Hollingsworth. However, they asserted that
HT did not have its own workers’ compensation insurance, and
“[p]arent corporations, subsidiary corporations and sister
corporations cannot piggyback to avoid liability by claiming a
‘doing business’ status.” They asserted that Bragg and HT
maintained separate operations, and that as a subsidiary, HT
12
was required to carry its own insurance. Plaintiffs argued that
Bragg paid benefits “for its own potential liability,” but no
benefits had been paid in HT’s name.
At the hearing on February 14, 2020, plaintiffs called as an
expert witness Scott Thomas, an attorney specializing in
“[i]nsurance coverage and litigation.” Thomas stated that he had
never worked for an insurance company, but as an attorney he
had represented insurance companies and “policy holders of
various kinds” in insurance coverage disputes. Thomas testified
that workers’ compensation insurance constituted “a very small
percentage of the matters that I have been involved with in my
career,” but he could nevertheless “recognize and understand how
a workers’ compensation insurance policy is structured.”
Thomas stated that he reviewed the information page of
the relevant policy, which “is sort of the index for the policy” and
includes “the policy’s definition of who is insured.” Thomas
concluded that “Heavy Transport, Inc., Mr. Hollingsworth’s
employer, is not an insured entity under this policy,” because the
information page of the policy did not include HT. He also noted
that in the “schedule of named insureds,” a company called
Heavy Transport, Inc. was listed, but its location was stated to be
in Imnaha, Oregon. There was nothing in the policy stating that
a Heavy Transport, Inc. in Stockton, California was insured.
The court asked Thomas, “If the insurer and the insured
agreed that it was their intention that the insured be an insured,
isn’t that the end of the query? Would you . . . take the position
that there is no coverage when the insured and the insurer agree
there is coverage?” Thomas said that under circumstances in
which there was an “insurance policy, a contract” that “does not
identify party A as an insured, then I would say they’re not
13
insured.” The court asked if, where the parties agreed that their
“intention from the beginning was for us to insure them and for
them to be an insured,” even if the policy said something
different, would Thomas “take the position that no, they are not
insured? Isn’t that an absurd position?” The court continued,
“Doesn’t the intent of the parties to a contract control? A writing
is just evidence of what they intended.” Thomas responded that
the intent, compared to the writing, does not control “in every
instance.”
Plaintiffs’ counsel asked Thomas how parties might reform
a contract if they realized there was a mistake in the written
terms, but the court barred this line of inquiry, stating, “This is
not a reformation case.” The court stated that the focus should
be on the parties’ intent, and “somehow you’ve hired an attorney
to, essentially, tell me that under the law, you should win.” The
court asked plaintiffs’ counsel to “move on to something else.”
Thomas testified that he was not aware that the parties had
made any corrections to the endorsement.
On cross-examination, Thomas agreed that the policy
included a notation that it applied under the workers’
compensation laws of California and Oregon. Bragg/HT’s counsel
asked if it applied to any work site in either state. Thomas
replied that he did not know, because that would be a “function of
what the insurance policy says.” Bragg/HT’s counsel pointed to
the extension of the information page of the policy, which
included a list of classification codes including code 7219 for
“trucking firms.” Thomas testified, “I do not know where these
codes in this policy came from.” Thomas could not recall whether
HT had been listed in the application for workers’ compensation
insurance, or whether HT had been assigned code 7219. Thomas
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did not know whether the “premium basis” listed on the
information page reflected HT’s payroll. Bragg/HT’s counsel
began to ask about other issues in the policy, but the court
suggested it was not necessary. Bragg/HT’s counsel said he had
no more questions. The court stated, “I will say now, his opinion
is of little import to the court.”
Plaintiffs’ counsel called Leanne Hollingsworth to testify.
She testified that Hollingsworth’s paychecks came from HT, and
she was not aware of anything suggesting that Bragg was
Hollingsworth’s employer. Hollingsworth’s work truck and
uniforms also said Heavy Transport. Plaintiffs’ counsel also
called Mark Hollingsworth as a witness, but when the court
determined that his testimony would be similar to his mother’s,
the court said the testimony was unnecessary. Plaintiffs had no
further witnesses.
Bragg/HT called Gregory Stone, the licensed insurance
broker retained by Bragg to obtain workers’ compensation
insurance in 2016. In February 2016, Stone participated in a
Workers’ Compensation Insurance Rating Bureau (WCIRB) audit
of the Bragg companies, along with David Benjamin, who worked
for WCIRB. Stone and Benjamin toured the Bragg facilities in
Long Beach, as well as the HT facility. WCIRB assigned a
classification code to HT: 7219 for trucking firms. Stone included
this information in his application to XL Insurance for workers’
compensation insurance for Bragg in March 2016. A “description
of operations” was submitted with the application, which is
intended to “help the underwriters understand the . . . scope of
operations of each one of the entities involved.” The entities
listed in the document were “divisions of one of the named
insureds.” HT was one of the divisions listed, and the description
15
stated that it is “[a] division of Bragg Investment Company;
specializes in over-sized multi-dimensional and large capacity
(from 1 ton to 400 tons) cargo providing a full-service approach to
your individualized transportation needs.” Stone explained that
“the Bragg companies do business as Heavy Transport. And so,
we describe, as a business, what Heavy Transport does, because
they have their own units with the decals on the side.”
The insurance application also included a “site location
coding” section, which Stone explained was relevant to “how we
allocate claims – cost and claims themselves.” HT was included
in this section, both at its Long Beach address and its Stockton
address. In addition, the insurance application package included
payroll projections, which Stone explained were the “basis of
premium in a workers’ compensation policy.” Smith stated that
HT’s payroll was included in the payroll projections. In the policy
itself, HT’s payroll projection—around $7.9 million—was
included on the information page next to “trucking firms” with
the classification code 7219. Smith stated that the payroll is used
to “calculate the premium for that specific classification.” Smith
testified that the policy’s schedule of named insureds also
included HT, but the notation that HT was located in Oregon was
a “clerical error” made by XL Insurance in writing the policy.
On cross-examination, plaintiffs’ counsel asked Stone about
exhibit 15, a letter to plaintiffs’ counsel from WCIRB, which
stated that in response to an inquiry by plaintiffs’ counsel, “no
results were found” regarding workers’ compensation insurance
for HT. The letter stated that “the coverage information
requested either does not exist or that coverage information could
not be found based on the information provided to us.” Plaintiffs’
counsel asked Stone if exhibit 15 indicated that WCIRB “does not
16
recognize Heavy Transport as having workman’s [sic] comp
insurance in the year 2016.” Stone replied, “No.” Plaintiffs’
counsel asked Stone whether the various Bragg companies had
“Bragg as the parent company.” Stone replied, “Yes. That’s what
makes them a named insured.” Stone also stated that he was
“not, so much, concerned about a dba being included as a named
insured. Because technically, they don’t have to, because they’re
a dba of the corporation.” Stone testified that he was not familiar
with who held the title on HT’s equipment.
The court then asked Stone questions. The court clarified
that Stone was a broker, and asked, “And as a broker, you don’t
work, necessarily, for the insured or the insurer, correct?” Stone
agreed. The court also asked about the $7.9 million payroll
projection, which included the Long Beach and Stockton
locations, and asked Stone, “[D]o you go over those records in
order to compile the information for the application?” Stone said
he did, “[w]ith the named insured,” specifically the chief financial
officer, Dennis Ferguson. Stone also stated that “XL” was the
insurer at the time of the incident, and it paid the claim. On re-
cross, plaintiffs’ counsel established that Stone did not know
whether Hollingsworth individually was included in the HT
payroll projections, but Stone stated that if “Mr. Hollingsworth
was an employee at the time of the payroll projection, his payroll
would have been included.”
Bragg/HT offered to call underwriter Rafi Astorian as a
witness, but the court stated, “I think I’ve heard enough with
respect to the policy.” Bragg/HT offered additional witnesses
“who handled” the insurance policy, but the court said they were
not necessary, stating, “I apologize, but clearly, Heavy Transport
was insured,” and added, “I think there’s no question about it.”
17
The court explained that the intent of the parties was important,
and here, “clearly the intent was to cover Heavy Transport Long
Beach and Heavy Transport Stockton, and they accepted
coverage.” The court stated that its “tentative ruling would be
that the conditions of compensation exist with respect to Heavy
Transport, and therefore workers’ comp is the exclusive remedy
with respect to Heavy Transport . . . .” The court stated that the
“conditions of compensation do not exist with respect to Bragg
Investments,” which did not employ Hollingsworth, and
“therefore workers’ compensation would not be the exclusive
right.” The court invited the parties to present additional
evidence or give their closing arguments.
Plaintiffs’ counsel stated, “You disagree with our expert.
Okay.” The court interrupted, and stated, “And let me just say,
your expert took an outrageous point of view at the outset. The
notion that some writing might control over the express intention
of the parties is found nowhere in law. It just isn’t.”
In his closing argument, plaintiffs’ counsel asserted that
the people “who write insurance policies for a living” are “very
sophisticated people” who “don’t want to make mistakes.” Since
the incident in 2016, however, “they still have not stepped up and
said, we made a mistake. We want to change this. We want to
show our true intention.” Plaintiffs’ counsel asserted that if
“there truly was an interest in making sure the policy was
accurate, to show their true intention, we would have seen that”
before now. The court stated, “[Y]ou haven’t explained to me why
XL would accept this workers’ comp claim, unless they could
trace Mr. Hollingsworth back to some payroll upon which they
based their premium.” Plaintiff’s counsel suggested that “they
saw . . . the picture of that Bragg crane on the trailer . . . showing
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that Bragg had the potential for exposure here.” The court
disagreed, stating that after the incident and claim, “they’re
going to say, wait a second, he worked for Heavy Transport. Was
Heavy Transport’s payroll part of the premium? Because if it
wasn’t, he’s not covered.” Plaintiffs’ counsel responded, “We don’t
have any of that evidence.” The court noted that the broker,
Stone, said “that the $7.9 million . . . included the payroll of both
Heavy Transport facilities.” Plaintiffs’ counsel pointed out that
Stone could not say whether that included payroll for
Hollingsworth specifically.
Plaintiff also asserted that HT operated as a separate legal
entity in California, but only Bragg was listed on the benefits
checks, and “we haven’t seen anything that says, we have
corrected our mistake to reflect our true intention. There’s
nothing in there that shows their true intention was anything
other than that written policy that says, Heavy Transport,
Oregon.” Plaintiffs counsel asserted that plaintiffs had done two
years’ worth of investigation into whether HT was insured, and
“nobody has stepped up and said, yeah, we meant to [insure HT].
Until now, until their civil liability is in issue, and suddenly they
walk in the door and go, oh, that was a mistake. ”
Plaintiffs’ counsel further argued that the documents were
“indisputable,” and the parol evidence rule was based “on the
notion that, if it’s in writing, it has some real, serious
consequences, and you don’t just say, oh, we decided something
different. [¶] And how easy would it be for an employer and their
insurance company, which they get along quite well with, to say,
we really wanted to do it a different way. We wanted to have
that covered at HT.” Plaintiffs’ counsel added, “Where were they
19
in 2016 when this man was killed, and said, oh my god, you
know, we didn’t get it right. We need to get this right.”
Before Bragg/HT could present a closing argument, the
court stated, “Workers’ compensation is the exclusive remedy.”
The court noted that “everyone agrees” HT was Hollingsworth’s
employer. The court then considered whether HT had “sufficient
insurance, so that the conditions of compensation occur under the
Labor Code,” and said, “I conclude that it does.” The court stated
that plaintiffs’ expert witness, Thomas, was not “particularly
helpful,” and Thomas’s assertion that HT was not covered
because of the Oregon address listed in the policy was “a
nonsense opinion.” The court stated that if it was “the intent of
the insured and the intention of the insurer, to cover all of the HT
facilities and its employees, then that coverage exists, and there
is workers’ compensation coverage for Heavy Transport.” The
court also noted that XL Insurance had accepted coverage and
paid the claim, stating, “To me, that evidence makes it quite clear
that it was the intention of Bragg Investments and Heavy
Transport, Inc., on the one hand, and XL, the insurer, on the
other, to include the Heavy Transport, Inc., operations in both
Stockton and Long Beach as part of the insurance policy that was
in place at the time” of the incident. The court then considered
whether Hollingsworth was also an employee of Bragg at the
time of the incident, and stated, “the answer to that question is
clearly, no. He was not.” The court instructed the parties to
prepare a judgment. 1
1Atthe beginning of the hearing, the court asked
Bragg/HT’s counsel several questions attempting to clarify the
ownership of the defendant companies, the merger of Bragg and
20
Plaintiffs timely appealed. 2
DISCUSSION
Plaintiffs assert two contentions on appeal: (1) the trial
court deprived plaintiffs of a jury trial on the factual issue of
insurance coverage, and (2) the court’s decision violates the parol
evidence rule and contradicts the insurance policy. 3 We consider
plaintiffs’ contentions below, following the “fundamental
principle of appellate procedure that a trial court judgment is
ordinarily presumed to be correct and the burden is on an
appellant to demonstrate, on the basis of the record presented to
the appellate court, that the trial court committed an error that
HT, and the corporate structure. At the end of the hearing, the
court held, over Bragg/HT’s objection, that the case involving
plaintiffs’ claims against Bragg would continue in superior court.
These issues are not relevant to this appeal.
2 The court’s judgment terminating proceedings in the
superior court is appealable. (See Furtado v. Schriefer (1991) 228
Cal.App.3d 1608, 1613.) Bragg/HT filed a cross-appeal, which it
later dismissed.
3Every appellant’s opening brief is required to “[p]rovide a
summary of the significant facts limited to matters in the record”
(Cal. Rules of Court, rule 8.204(a)(2)(C)) and state each point of
argument “under a separate heading or subheading summarizing
the point.” (Id., rule 8.204(a)(1)(B).) Here, the 49-page
“Introduction” section of plaintiffs’ opening brief is peppered with
legal contentions and commentary about the superior court’s
perceived errors. Legal arguments not included in the argument
section of plaintiffs’ opening brief under appropriate headings
have been forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th
172, 179 [“Failure to provide proper headings forfeits issues that
may be discussed in the brief but are not clearly identified by a
heading”].)
21
justifies reversal of the judgment.” (Jameson v. Desta (2018) 5
Cal.5th 594, 608-609.)
A. Plaintiffs did not have a right to a jury trial
Plaintiffs assert that the superior court committed
reversible error by depriving them of a jury trial “on the factual
issue of coverage.” Bragg/HT asserts that jurisdiction is always a
question for the court, not a jury, even if the court must make
some factual findings in that determination. Whether a party
was constitutionally entitled to a jury trial is a question of law
that we review de novo. (Caira v. Offner (2005) 126 Cal.App.4th
12, 23.) We find that plaintiffs were not entitled to a jury trial on
the issue of jurisdiction.
In Hollingsworth I, we issued a writ of mandate and
remanded the case to allow the trial court to “conduct further
proceedings limited to determining which tribunal has exclusive
jurisdiction over plaintiffs’ claims.” (Hollingsworth I, supra, 37
Cal.App.5th at p. 937.) Plaintiffs have alleged that
Hollingsworth was acting within the scope of his employment
with HT at the time of the incident, but that they have a
statutory right to bring a claim under Labor Code section 3706
based on HT’s alleged lack of insurance. “Whether or not [an
employer] carried the required work[ers’] compensation
insurance is a question going to the jurisdiction of the superior
court to entertain the action for wrongful death. . . . [J]urisdiction
is a question of law and it is for the court and not for the jury to
determine.” (Coleman v. Silverberg Plumbing Co. (1968) 263
Cal.App.2d 74, 79-80 (Coleman).)
Plaintiffs assert that because exclusive jurisdiction relied
on a disputed issue of fact—whether HT was insured—they were
entitled to have a jury act as factfinder. They rely on cases in
22
which the plaintiffs asserted common law causes of action, but
the parties disagreed as to whether the plaintiffs’ claims fell
within workers’ compensation exclusivity. “As a general rule, an
action brought under Labor Code section 3706 differs markedly
from a common law negligence action” (Valdez v. Himmelfarb
(2006) 144 Cal.App.4th 1261, 1269), because “in an action
brought under Labor Code section 3706 an employer’s liability is
determined under rules of pleading and proof.” (Id. at p. 1268.)
This distinction was discussed in Coleman, supra, 263
Cal.App.2d 74. In Coleman, the decedent’s wife and child sued
after their husband and father, Coleman, died while operating a
backhoe at a construction site. The defendants included several
companies that were involved in the construction project,
including Silverberg. The plaintiffs alleged, in part, that they
were entitled to sue under Labor Code section 3706 because
Silverberg did not carry the appropriate workers’ compensation
insurance. (Id. at p. 77.) The court granted the defendants’
motion for nonsuit, and the plaintiffs appealed. The Court of
Appeal stated, “The theory of recovery for wrongful death of a
presumptive employee (Coleman) caused by the presumptive
negligence of Silverberg is based upon sections 3700, 3706 and
3708 of the Labor Code.[ ] Assuming arguendo that Coleman was
Silverberg’s employee, plaintiffs had to plead [citations] and
prove that Silverberg violated section 3700 by not carrying the
work[ers’] compensation required [citations]. We are not here
concerned with common law causes of action, in which case it is
incumbent on the defendant to plead and prove the employer-
employee relationship and work[ers’] compensation insurance
coverage. [Citation.] A complaint disclosing an employer-
employee relationship in this action without negativing the
23
existence of work[ers’] compensation insurance would have been
subject to a general demurrer.” (Coleman, supra, 263 Cal.App.2d
at p. 79.) Coleman stated, as quoted above, that “[w]hether or not
Silverberg carried the required work[ers’] compensation
insurance is a question going to the jurisdiction of the superior
court,” and “jurisdiction is a question of law and it is for the court
and not for the jury to determine.” (Id. at pp. 79-80.) The court
held that the motion for nonsuit was properly granted on this
basis. (Id. at p. 80.)
Plaintiffs rely on cases involving common law causes of
action such as Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th
606. There, the plaintiff employee sued the defendant employer
and four employees “for assault and intentional infliction of
emotional distress after the coemployees staged a mock robbery
with Lee as the victim.” (Id. at pp. 610-611.) The defendants
asserted that the plaintiff’s claims were barred by workers’
compensation exclusivity under Labor Code section 3600. The
case was presented to a jury in two phases: the first phase was
intended to determine whether the plaintiff’s claims were barred
under workers’ compensation exclusivity; if the claims were not
barred, liability and damages would be determined in phase two.
(Id. at p. 612.) Contested issues at trial and on appeal focused on
whether plaintiff’s claims satisfied the statutory conditions for
workers’ compensation exclusivity, including whether the
plaintiff was acting within the course of her employment during
the incident and whether the injury was proximately caused by
the employment. (Id. at p. 624; see Lab. Code, § 3600, subd. (a).)
The court ultimately held that the jury had been properly
instructed on these issues and upheld the damages award to the
24
plaintiff. 4 The exception to workers’ compensation exclusivity in
Labor Code section 3706 was not at issue in Lee.
Plaintiffs also rely on Doney v. Tambouratgis (1979) 23
Cal.3d 91 (Doney), in which the plaintiff alleged injuries resulting
from assault and battery by the defendant. The complaint did
not allege an employment relationship, and the defendant did not
assert workers’ compensation exclusivity as an affirmative
defense until the appeal. The Supreme Court rejected the
defendant’s belated contention, stating, “The complaint . . .
contained no allegation directly or indirectly indicating that an
employment relationship existed between plaintiff and defendant
or that the injuries which formed the basis of the action arose out
of and in the course of employment. In these circumstances it
became the responsibility of defendant to plead and prove that
the conditions of compensation rendering him subject to the
protections of the [Workers’ Compensation Act] existed.[ ] This
he did not do.[ ] Accordingly he may not now raise the defense of
coverage by the act.” (Id. at pp. 97-98.) In a footnote, Doney noted
the difference between common law-based claims and cases
4 Plaintiffsalso cite Ramey v. General Petroleum Corp.
(1959) 173 Cal.App.2d 386, without including a specific page
citation, asserting that the court “reviewed a jury trial on
predicate facts for application of compensation [sic] as a defense,”
and found that “[t]here was no question that the employer and
the employee was [sic] entitled to a jury trial on the issue of
coverage.” In fact, Ramey involved an appeal following a
demurrer based on the statute of limitations. The court did not
consider or decide whether a party was entitled to a jury trial
with respect to workers’ compensation coverage.
25
under Labor Code section 3706, and cited Coleman with approval.
(Doney, supra, 23 Cal.3d at p. 99, fn. 11.)
Plaintiffs also rely on Scott, supra, 46 Cal.2d 76, which we
discussed in detail in Hollingsworth I, supra, 37 Cal.App.5th 927.
In that case, a lawsuit by an injured employee was pending at the
same time that a proceeding regarding the same incident was
before the Industrial Accident Commission, a predecessor to the
WCAB. The Supreme Court stated that either the superior court
or the commission would have exclusive—not concurrent—
jurisdiction, “depending on whether or not the injuries were
suffered within the course and scope of an employment
relationship and so covered by the work[ers’] compensation laws.”
(Scott, supra, 46 Cal.2d at pp. 82-83.) The court discussed the
differences between concurrent and exclusive jurisdiction, and
within that discussion noted, “Other practical problems, and
differences between this situation and that of completely
concurrent jurisdiction in two different tribunals are said to be
these: [¶] 1. In a jury trial of the superior court action, it appears
that a special interrogatory on the question of coverage would (at
least in the absence of special circumstances) be necessary in
order to disclose what was determined on that point, in case of a
verdict for defendant. Without such a special interrogatory it
could not be ascertained whether the verdict turned on one of the
other pleaded defenses of absence of defendant’s negligence,
unavoidable accident, or contributory negligence of plaintiff,
rather than on the issue of the employment relationship. This,
however it is answered, is a mere incident of procedure which can
be handled in the trial court.” (Id. at p. 84.)
Plaintiffs cite this portion of Scott and argue, “According to
the Supreme Court’s Scott decision, it is a jury determination if
26
the injured worker’s employer carried Worker’s Compensation
Insurance for the injured employee at the time and location of the
injury and if that constitutes a defense.” We disagree with this
interpretation of Scott. When discussing the possibility of a
special interrogatory to a jury, the court in Scott was discussing
“practical problems” that may arise in certain cases. The court
was not discussing whether a party has a right to a jury trial for
the determination of jurisdictional issues. “‘[A]n opinion is not
authority for a proposition not therein considered.’” (Elisa B. v.
Superior Court (2005) 37 Cal.4th 108, 118.)
Moreover, it is the general rule that “[i]n a civil case . . .
personal and subject matter jurisdiction ordinarily are issues for
the court, not the jury.” (People v. Betts (2005) 34 Cal.4th 1039,
1049, fn. 2.) It is well established that whether a court has
subject matter jurisdiction is a question of law. (See, e.g.,
Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774
[“Because the appeal is from a dismissal for lack of subject matter
jurisdiction,[ ] a question of law, this court reviews the issue de
novo”]; Tearlach Resources Limited v. Western States Internat.,
Inc. (2013) 219 Cal.App.4th 773, 780 [“Questions of subject
matter jurisdiction are questions of law, which are reviewed de
novo”]; Warburton/Buttner v. Superior Court (2002) 103
Cal.App.4th 1170, 1180 [“the issue of whether a court has subject
matter jurisdiction over an action against an Indian tribe is a
question of law subject to de novo review”]; Lundahl v. Telford
(2004) 116 Cal.App.4th 305, 312 [“Whether California had sole
subject matter jurisdiction over spousal support is a question of
law that we review de novo”].) And “[a]n issue of law must be
tried by the court.” (Code Civ. Proc., § 591.) “When the right to
27
jury trial exists, it provides the right to have a jury try and
determine issues of fact. (Code Civ. Proc., § 592; Evid. Code,
§ 312.) Even in such cases, issues of law are to be determined by
the court, rather than a jury. (Code Civ. Proc., § 591; Evid. Code,
§ 310; see generally 7 Witkin, Cal. Procedure, supra, Trial, § 81,
pp. 107-108 [citing cases].)” (Shaw v. Superior Court (2017) 2
Cal.5th 983, 993.)
Because plaintiffs asserted jurisdiction under Labor Code
section 3706, it was appropriate for the court, not a jury, to
determine the questions relevant to jurisdiction. Plaintiffs did
not have a right to a jury trial on these facts. We therefore find
no error in the court’s denial of plaintiffs’ request for a jury trial.
B. The court properly considered parol evidence
Plaintiffs contend the superior court’s “decision is contrary
to the limitations in the policy and a violation of the parol
evidence rule,” and assert that “[t]he basis for the Judgment
should be overturned as violating the Parol Evidence Rule.”
Bragg/HT asserts that the court correctly considered parol
evidence, including the evidence presented by plaintiffs.
“[I]nterpretation of a contract is a judicial function.” (Wolf
v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th
1107, 1125 (Wolf).) Contracts, including insurance policies, “are
interpreted so as to give effect to the mutual intention of the
parties at the time of contracting, to the extent ascertainable and
lawful. [Citations.] The mutual intent of the parties is
ascertained from the contract language, which controls if clear
and explicit. [Citations.] Where necessary, a contract may be
interpreted by reference to the circumstances under which it was
made or the matter to which it relates. . . . Extrinsic or parol
evidence may be used to explain ambiguity, context or related
28
matter.” (Fireman’s Fund Ins. Co. v. Workers’ Comp. Appeals Bd.
(2010) 189 Cal.App.4th 101, 110-111.)
“Although the [parol evidence] rule results in the exclusion
of evidence, it ‘is not a rule of evidence but is one of substantive
law.’” (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343
(Casa Herrera).) The superior court’s determination whether the
contractual language is ambiguous is a question of law subject to
independent review. (Winet v. Price (1992) 4 Cal.App.4th 1159,
1165.) “When the competent parol evidence is in conflict, and
thus requires resolution of credibility issues, any reasonable
construction will be upheld as long as it is supported by
substantial evidence.” (Id. at p. 1166.)
Plaintiffs argue, “Where there is an integrated contract,
such as here, the Parol Evidence Rule prevents any attempt to
change the terms” of the contract. They assert that the XL
Insurance policy covered only a Heavy Transport, Inc. in Oregon,
and based on the court’s consideration of parol evidence, “the
terms [of the policy] as to the identity of HT Oregon [were]
changed to HT California.” Plaintiffs contend, “While the parties,
and the broker had every opportunity to seek a written
modification in the form of an endorsement for an additional
insured, they did not. They never claimed they made a mistake.
[Record citation.] Instead, they prevailed on the Trial Judge to
alter the terms for coverage in the insurance agreement to have it
apply to a different entity, a California corporation.” Bragg/HT
asserted below that its named insured was HT in California, and
only the Oregon address was erroneous. 5 Bragg/HT contends on
5Plaintiffs assert that Bragg/HT’s position is that because
Bragg as a parent company sought insurance or was insured, HT
29
appeal that in light of the competing constructions of the policy,
the superior court properly considered parol evidence to
determine the intent of the contracting parties.
We agree with Bragg/HT. The XL Insurance policy was
ambiguous as to whether the named insured was the HT in
California that employed Hollingsworth, or a different entity in
Oregon. In light of the parties’ competing interpretations of the
contract, the court appropriately considered parol evidence to
determine the meaning of the disputed terms. The parol
evidence rule “does not . . . prohibit the introduction of extrinsic
evidence ‘to explain the meaning of a written contract . . . [if] the
meaning urged is one to which the written contract terms are
reasonably susceptible.’” (Casa Herrera, supra, 32 Cal.4th at p.
343; see also Wolf, supra, 162 Cal.App.4th at p. 1126 [“Extrinsic
evidence is admissible . . . to interpret an agreement when a
material term is ambiguous”].) “[T]he intention of the parties as
expressed in the contract is the source of contractual rights and
duties.[ ] A court must ascertain and give effect to this intention
by determining what the parties meant by the words they used.
Accordingly, the exclusion of relevant, extrinsic evidence to
explain the meaning of a written instrument could be justified
only if it were feasible to determine the meaning the parties gave
to the words from the instrument alone.” (Pacific Gas & Elec. Co.
v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 38.)
Here, the intention of the parties was not clear from the words of
as Bragg’s subsidiary was automatically also insured. This does
not accurately reflect Bragg/HT’s position. Rather, Bragg/HT
contends that Bragg, “on behalf of itself and its divisions
including Heavy Transport,” obtained insurance that specifically
included HT as a division of Bragg.
30
the XL Insurance policy alone. In light of the differing
interpretations of the policy, the superior court’s consideration of
parol evidence to determine the intent of the parties was not
erroneous.
Substantial evidence showed that the parties intended HT
in California to be a named insured, and that inclusion of the
Oregon address was erroneous. Thomas Poskus of XL Insurance
stated in his declaration that at the time of the incident, HT was
a named insured under the policy. It was undisputed that XL
Insurance paid plaintiffs benefits under the policy, indicating
that XL Insurance had determined the claim was covered. Broker
Gregory Stone, who had worked with Bragg for years, testified
that HT, its two California locations, and its WCIRB
classification code as a trucking firm were included in the
insurance application prepared for XL Insurance. The
application supported this testimony. Stone further testified that
HT’s payroll projections informed the premium charged for the
insurance. “Trucking firms,” the classification code, and HT’s
payroll projection were included on the policy’s information page.
Substantial evidence supports the court’s conclusion that HT was
insured under the XL Insurance policy at the time of
Hollingsworth’s death.
Plaintiffs argue in their reply brief that there was a
“repeated assumption throughout [Bragg/HT’s] brief . . . that
since Bragg made an application for a Workers’ Compensation
Policy, just by submitting that application it would therefore
cover Heavy Transport’s operation in California.” This is not an
accurate representation of Bragg/HT’s position. Rather,
Bragg/HT asserts that the superior court properly considered
that HT and HT’s location were included in the insurance
31
application, HT’s payroll informed the policy premium, HT was a
named insured, XL Insurance did not dispute coverage, and XL
Insurance paid benefits on the claim. We agree that the court
properly considered these things to determine the intent of
Bragg/HT and XL Insurance, and see no evidence in the record
supporting plaintiffs’ contention that Bragg/HT argued that a
presumption of coverage arose based on the insurance application
alone.
Plaintiffs also argue in their reply that benefit payments
were made under Bragg’s name, not HT’s, and therefore HT “is
not entitled to immunity.” Plaintiffs cite Hernandez v. Chavez
Roofing, Inc. (1991) 235 Cal.App.3d 1092, which held that even
though the injured employee was covered by a “general
contractor’s workers’ compensation insurance,” the uninsured
employer was not immune from liability under Labor Code
section 3706. (Id. at p. 1095.) Hernandez is not applicable here,
because HT was not an uninsured employer. Furthermore, the
name on the benefit checks does not suggest that HT was
uninsured. To the contrary, as the superior court noted, payment
of the claim shows that XL Insurance found that the incident was
covered by the policy.
Plaintiffs have not demonstrated that the court erred in
considering parol evidence, or that the court “changed” the policy
by interpreting it to mean that HT was insured. The court’s
conclusions were supported by substantial evidence. The court
was therefore correct in finding that the WCAB has exclusive
jurisdiction over plaintiffs’ claims against HT and terminating
the proceedings as to HT.
32
DISPOSITION
The judgment is affirmed. Bragg/HT is entitled to recover
its costs on appeal.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
33