The opinion
MOSK, J.—I dissent.
Section 3860 of the Labor Code—which governs the cause before us—is clear: An innocent employer may obtain reimbursement for the costs of workers’ compensation benefits that it has paid to an employee who has suffered injury, and may also obtain reimbursement for the costs of obtaining such reimbursement, including attorney fees and costs, out of the proceeds of the settlement of any action against a third party responsible for the injury, with the remainder, if any, going to the employee. If one or more attorneys effected the settlement—whether such attorney or attorneys are the employer’s alone, the employee’s alone, the employer and employee’s jointly, or the employer’s and the employee’s individually—they may obtain reasonable attorney fees out of the settlement proceeds, with the remainder, if any, going to the employer to satisfy its claim for reimbursement, with the remainder of that, if any, going to the employee.
Section 3856 of the Labor Code—which does not govern—is clear as well: An innocent employer may obtain reimbursement for the costs of workers’ compensation benefits that it has paid to an employee who has *1043 suffered injury, and also for the costs of obtaining such reimbursement, including attorney fees and costs, out of the proceeds of any judgment against a third party responsible for the injury, with the remainder, if any, going to the employee. If one or more attorneys prosecuted the action— whether such attorney or attorneys are the employer’s alone, the employee’s alone, the employer and employee’s jointly, or the employer’s and the employee’s individually—they may obtain reasonable attorney fees out of the judgment proceeds, with the remainder, if any, going to the employer to satisfy its claim for reimbursement, with the remainder of that, if any, going to the employee.
In Quinn v. State of California (1975) 15 Cal.3d 162 [ 124 Cal.Rptr. 1 , 539 P.2d 761 ], we construed Labor Code section 3856 differently. In the opinion of the court, in which I concurred, Justice Tobriner, over a dissent by Justice Clark, interpreted the provision to state that the attorney or attorneys who prosecuted the action against the third party responsible for the employee’s injury must obtain reasonable attorney fees out of the employer’s share and/or the employee’s share of the judgment proceeds by “equitable apportionment,” and not out of the judgment proceeds themselves, except in the case in which the employer and the employee each had a separate attorney or attorneys.
I would not permit Quinn’s construction of Labor Code section 3856 almost 25 years ago to affect our reading of Labor Code section 3860 today. First, Quinn is distinguishable. True, in dictum it purported to extend its analysis from section 3856 to section 3860. But, by its very terms, its analysis simply does not apply to a case, like the present, in which the employer and the employee each had a separate attorney or attorneys. Second, and dispositive, Quinn is wrong. At the time that it was decided, I admit, I found Justice Clark’s dissent unpersuasive. But, today, I am compelled to find it otherwise. Contrary to the plurality’s implication, no argument can be made in favor of Quinn’s construction of section 3856 through invocation of the so-called “doctrine of legislative acquiescence.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1111 [ 17 Cal.Rptr.2d 594 , 847 P.2d 560 ] (dis. opn. of Panelli, J.).) The “doctrine” states that, “ ‘ “when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.” ’ ” (Ibid., quoting Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 219 [ 246 Cal.Rptr. 733 , 753 P.2d 689 ], quoting in turn Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734 [ 180 Cal.Rptr. 496 , 640 P.2d 115 , 30 A.L.R.4th 1161 ].) The Legislature added section 3856 in 1959. It has never amended the provision, either before Quinn or after. It added section *1044 3860 in 1959. It amended that provision twice, once in 1965 and once in 1971, each time well in advance of Quinn .
Without Quinn’s construction of section 3856 almost 25 years ago, we have no reason to read section 3860 other than as we ought. To the extent that “fairness” may be taken into account—as it must, to judge from the plurality’s repeated invocation of the notion—it weighs in favor of my position. For, as between the employee who has suffered injury and the innocent employer who has paid him workers’ compensation benefits therefor, it is altogether “fair” for the employer to obtain reimbursement for the costs of such benefits out of the proceeds of the settlement of the action against the third party responsible for the injury prior to, and in reduction of, what the employee may obtain as a remainder, inasmuch as the employee has already obtained, and will retain, the workers’ compensation benefits paid to him by the employer. That is because it would be “unfair” for the employee to get more for himself if the employer did not first receive back what he gave.
I would affirm the judgment of the Court of Appeal.
Brown, J., concurred.