# Board of Retirement v. Terry

> California Court of Appeal · August 5, 1974 · 40 Cal. App. 3d 1091

URL: https://www.frixlaw.com/law-library/cases/9731172

## Case

- **Full name:** BOARD OF RETIREMENT OF KERN COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION, Plaintiff and Appellant, v. DAVID T. TERRY, Defendant and Respondent
- **Court:** California Court of Appeal
- **Decided:** August 5, 1974
- **Citations:** 40 Cal. App. 3d 1091; 115 Cal. Rptr. 718; 1974 Cal. App. LEXIS 936
- **Precedential status:** Published
- **Opinion:** Concurrence by Stone
- **Judges:** Franson, Stone
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized — as noted by a later court.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731172

## Opinion text

*1098 STONE, J. *
I concur in the logical reasoning of the majority opinion and the authority of Board of Administration v. Ames, 215 Cal.App.2d 215 [ 29 Cal.Rptr. 917 ], upon which the majority largely relies. I do so reluctantly, however, because of the untoward results inherent in Government Code section 31820 exemplified by this case. For one thing, a person settling a claim with an employee of the state or any political subdivision thereof based upon personal injuries has no assurance that his liability is final until the employee retires or leaves public service. This is true whether he satisfies a judgment in an action at law or makes a settlement and receives a complete release from the employee. Here the injured employee filed for retirement two years after the accident and some considerable period of time after Terry had satisfied the claim in full. There is nothing in the language of section 31820 that prevents a disability retirement claim of this nature being filed five years or longer after the accident, after settlement of the claim, or after satisfying a judgment.
During the time the employer’s cause of action is suspended, that is, until the employee seeks retirement, the employee’s retirement benefits increase. Thus, not only does the sword of Damocles hang over the head of one who pays a judgment or settles a claim with an injured public employee, but it grows heavier year by year as the employee’s retirement benefits increase.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731172. Public record. Not legal advice.