How to Avoid Ten Common Mistakes in Your Uebtf Joinder Petition

• Jurisdiction: California,United States
• Author: The Hon. Daniel Dobrin Los Angeles, California
• Publication year: 2020
• Citation: Vol. 33 No. 1

How To Avoid Ten Common Mistakes in Your UEBTF Joinder Petition

The Hon. Daniel Dobrin Los Angeles, California

Disclaimer: The opinions expressed in this article are those of the author and are not the opinions of the State of California Department of Industrial Relations, the Division of Workers' Compensation, or the Workers' Compensation Appeals Board.

Introduction

Few tasks are more difficult in an applicant's attorney's practice than actually joining the Uninsured Employers Benefits Trust Fund (UEBTF, also known as UEF). In a case where the applicant is unlucky enough to work for an uninsured employer or is in a disputed employment/coverage situation, this seemingly simple step has been known to stymie forward progress in the case for months or years. As a Workers' Compensation Judge who has reviewed well over a thousand UEBTF joinder petitions, I would be the first to admit that actually joining UEBTF is rarely easy and usually requires a great deal of attention to detail.

This article identifies what are probably the most common problems in presenting a successful UEBTF joinder petition and explains how to avoid them. The goal is to improve your score on this difficult endeavor. It is easy to avoid some of the mistakes cited below; others are more subtle and can catch even experienced practitioners by surprise. Unfortunately, any of these errors may be sufficient to lead to that dreaded order, after all your hard work, denying your UEBTF joinder petition.

Keep in mind that in order to join UEBTF you really need to prove only three things:

• That you have established jurisdiction over the correctly named employer

• That the employer, at least arguably, has no insurance coverage

• That you properly served your joinder petition

After a preliminary discussion of the key element of jurisdiction and a brief checklist of your petition's necessary documents, the article addresses in sequence the most common errors surrounding these three proofs.

Jurisdiction and Why It Is So Important

Jurisdiction is a critical concept in determining UEBTF joinder issues. You really need to understand what it is if you are going to become an A-list UEBTF joiner. The whole idea is best comprehended by means of a brief explanation that may reiterate what you were taught in law school.

Fundamental to due process are notice and an opportunity to be heard. It is not enough to file a lawsuit against someone and go to court to get a judgment; you must also prove that the defendant in your case knew about the lawsuit, whether or not they decided to show up in court. Establishing jurisdiction is the law's way of saying to the defendant, "No way you didn't know you were sued!"

Naturally, an unscrupulous defendant is likely to deny knowledge of a claim against them when it is to their legal advantage to do so. The law, then, has come up with a series of arguably arcane and byzantine ways, set forth in various sections of the Code of Civil Procedure (CCP) and Corporations Code, of proving to the satisfaction of the court defendant's knowledge of such a claim. These rules appear to be effective and, where followed, make it unlikely that any defendant will be genuinely taken by surprise by a claim against them.

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This brings us to another question: Why is it so important to prove jurisdiction (that is, proper notice to the defendant of the WCAB claim and defendant's presumptive knowledge of the WCAB claim) in order to join UEBTF? That has to do with UEBTF's proper mission within the workers' compensation system and where you fit in as an applicant's attorney in fulfilling that mission.

Before UEBTF's establishment in 1972 as a public agency providing relief to employees of uninsured employers, such employees had no recourse beyond suing the employer, who was probably judgment-proof, in civil court.¹ UEBTF accomplishes its mission by paying those employees most forms of workers' compensation benefits after the uninsured employer has failed to do so (see, generally, Labor Code §§3715-3719).

Under multiple provisions of the law, including Labor Code section 3717(a), UEBTF enjoys a right of recovery against those defaulting uninsured employers. As a public agency, UEBTF is of course under a duty to use its resources efficiently. Part of that duty is to regularly pursue its rights of recovery against those employers.² Many of them, of course, are bankrupt or have minimal assets. Others, however, do own valuable real estate or other recoverable assets. Going after these employers in civil court not only helps keep UEBTF's operational costs down, it helps deter the uninsured employer's unlawful conduct and assists in making those responsible for the loss pay for it.

However, unless UEBTF is able to prove jurisdiction over the employer—in other words, that the named employer is an actual human being or a valid, "sue-able" legal entity and that the employer knew about the WCAB case while it was progressing—UEBTF's efforts to collect against the employer will be largely for naught.

For better or worse, the law places the burden of establishing jurisdiction not on UEBTF itself but on the other parties to the underlying WCAB claim (although the law requires UEBTF to provide certain forms of investigative assistance under Labor Code section 3716(d)(4)). It is ordinarily you, the applicant's attorney, who must do the heavy lifting to prove jurisdiction before UEBTF can be joined. Essentially, your job is to make it easy for UEBTF to go to superior court and obtain a judgment against your client's employer while making it difficult or impossible for this employer to deny knowledge of the WCAB case against them once UEBTF's collection efforts take place.

How is this jurisdictional process carried out? Through the time-honored paths set forth in Labor Code section 3716(d) of proving either (1) a general appearance of the employer before the WCAB or ( 2) proper service, pursuant to Code of Civil Procedure requirements, of the application for adjudication and special notice of lawsuit (SNOL) on the employer. These two requirements are set forth at CCP sections 415.10 et seq.; the main ones to be familiar with are CCP section 415.10 (regarding personal service) and 415.20 (regarding substituted service). Fulfilling these requirements is often easier said than done, as the list of potential missteps later in this article suggests.

A UEBTF Joinder Petition Checklist

Many successful petitions are fewer than 20 pages. Attaching an extra copy of your entire legal file to the UEBTF joinder petition, although I often see this, is neither necessary nor helpful. In a typical case where the employer is not playing ball with you by filing a responsive pleading or hiring an attorney, you will want to make sure your petition includes the following documents:

1. The text of the petition itself. What you say is far less important to me than the documents you attach, but many judges expect a basic explanation of how you have met your three burdens of proof.

2. Verification (see 8 CCR 10510(d)).

3. A copy of the SNOL you served on the employer.

4. The process server's proof of service, which should clearly reference the application or applications on file with EAMS that your process server served.

5. Supporting documents as necessary, such as process server's declaration or commercial search service data, to prove the validity of the service address and demonstrate your process server's efforts.

6. WCIRB letter or printout(s) showing noncoverage for all dates of injury.

7. Proof of service by mail of the petition itself.

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If your opponent in the case has entered a general appearance by means of an answer, appearance letter, or...