Before KALODNER, HASTIE and SMITH, Circuit Judges.
This appeal is from a summary judgment entered in a garnishment proceeding initiated by the plaintiff after her recovery of a judgment against the defendant in an action for personal injuries. The defendant is not a party to this appeal. A brief recital of the history of the litigation will place the questions raised in proper context.
The plaintiff, a domestic servant and companion in the employ of the defendant, accompanied her employer on a vacation trip to California. While a passenger in an automobile owned and operated by the defendant, the plaintiff sustained personal injuries when the automobile collided with another vehicle. The accident occurred on April 13, 1959, in Los Angeles. When they returned to Pennsylvania the plaintiff commenced two successive actions against the defendant, the first of which was dismissed without prejudice shortly after the commencement of the second.
The defendant's automobile was covered by a public liability policy issued by the Aetna Casualty & Surety Company, the garnishee. While the first action was pending, the garnishee disclaimed liability under the said policy on the ground that coverage was specifically excluded by a clause contained therein. The garnishee nevertheless undertook the defense of the action on behalf of the defendant upon her execution of a nonwaiver agreement which contained the usual reservation of defenses. The attorneys for the garnishee filed an answer on behalf of the defendant in the second action. The answer contained, in addition to a general denial of liability, an affirmative allegation that recovery was barred under the "guest statute" of California. 66 West's Ann.Cal.Code, § 17158. There was no other affirmative defense raised.
The plaintiff recovered a judgment against the defendant and thereafter instituted a garnishment proceeding pursuant to the provisions of the Pennsylvania Rules of Civil Procedure as amended, 12 P.S.Appendix, rules 3101 to 3149, and Rule 69(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. A writ of execution, accompanied by interrogatories, was served upon the garnishee. The garnishee resisted the garnishment on its own behalf and filed an answer in which it denied liability to the defendant and alleged affirmatively that coverage under the policy was excluded.
The denial of liability was predicated upon the following exclusion clause:
"This policy does not apply * * *:
"(e) to bodily injury to any employee of the Insured arising out of and in the course of (1) domestic employment by the Insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the Insured;".
This clause, as we construe it, precludes recovery on the policy if the injury arising out of and in the course of domestic employment is compensable under "any workmen's compensation law."
The matter came before the court below on a motion for summary judgment filed by the plaintiff pursuant to Rule 56 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The garnishee filed a written answer in which it repeated, but at greater length, the defense set forth in its answer to the interrogatories. The court concluded that there was no genuine issue as to any material fact and thereupon entered judgment in favor of the plaintiff.
The parties to this appeal agree, and the court found, that the Pennsylvania Workmen's Compensation Act does not "apply to or in any way affect any person who at the time of injury is engaged in domestic service * * *." 77 P.S. § 1a. The court found "that the situation [was] governed by Pennsylvania law" and held that absent a remedy under the said Act the exclusion clause could not be raised as a defense in the garnishment proceeding. The court declined to consider the possible applicability of the California Workmen's Compensation Act. This was error. The exclusion clause was a valid defense in the garnishment proceeding if compensation benefits are, or were, "in whole or in part * * * payable * * * under any workmen's compensation law."
An employee who sustains a personal injury arising out of and in the course of employment may seek compensation benefits under the workmen's compensation laws of either the state of employment or the state of injury. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S. Ct. 208, 88 L. Ed. 149 (1943); Pacific Employers Industrial Accident Ins. Co. v. Industrial Accident Comm; 306 U.S. 493, 59 S. Ct. 629, 83 L. Ed. 940 (1939); see also Weinberg v. State Workmen's Ins. Fund, 368 Pa. 76, 81 A.2d 906 (Pa.Sup.Ct. 1951). Since the Pennsylvania Act is not applicable in the case of domestic servants, we look to the law of California, the place of injury. The narrow question raised by the defense in the garnishment proceeding is whether the plaintiff had a remedy under the workmen's compensation laws of California at the time of the injury.
The pertinent provisions of the California Workmen's Compensation Act are Sections 3351, 3358.5, 3600, 3601 and 3706, 44 and 45 West's ...