Employee Is Not Entitled To Attorney Of His Choice When Sued As A Result Of Carrying Out His Duties, After A Woman Died Drinking Too Much Water In An Ill-Conceived Radio Contest.

As the result of drinking too much water in an ill-conceived radio contest, a woman died. Plaintiff had helped conduct the contest as part of his duties as an employee of defendant, the company that owned the radio station. Although defendant told plaintiff it would provide legal counsel for him, plaintiff chose to hire his own attorney. When the woman’s family sued plaintiff (as well as defendant and others), plaintiff tendered defense of the action to defendant’s insurer. The insurer accepted the tender without any reservation of rights and appointed a different attorney to represent plaintiff. Plaintiff refused that attorney and insisted on being represented by the attorney he had chosen. When the insurer refused to pay for that attorney, plaintiff filed a cross-complaint against defendant seeking indemnity under Labor Code section 2802 for the fees and costs he incurred. Subdivision (a) of section 2802 requires an employer to indemnify its employee “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” The trial court found that none of the fees and costs incurred after the insurer appointed an attorney were necessary expenditures and therefore plaintiff was not entitled to indemnity. The appellate court affirmed, stating plaintiff did not have an absolute right to chose his own attorney to represent him, and that the fact that he faced liability for punitive damages and for a time criminal charges did not give him the right to insist that his employer or its insurer pay for the attorney of his choice. (Carter v. Entercom Sacramento, LLC (Cal. App. Third Dist.; September 3, 2013) 219 Cal.App.4th 337.