{
  "id": 1935036,
  "name": "CONTINENTAL CASUALTY CO. v. Bobby C. SHARP",
  "name_abbreviation": "Continental Casualty Co. v. Sharp",
  "decision_date": "1993-03-15",
  "docket_number": "92-1135",
  "first_page": "286",
  "last_page": "290",
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      "cite": "312 Ark. 286"
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      "cite": "849 S.W.2d 481"
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "year": 1972,
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      "year": 1954,
      "opinion_index": 0,
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      "cite": "315 F.Supp. 228",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
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        3134720
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      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/315/0228-01"
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    {
      "cite": "223 Ark. 894",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1650415
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      "year": 1954,
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    {
      "cite": "Ark. Code Ann. \u00a7 11-9-410",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1987,
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T21:48:25.249850+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "CONTINENTAL CASUALTY CO. v. Bobby C. SHARP"
    ],
    "opinions": [
      {
        "text": "Tom Glaze Justice.\nOn October 26, 1987, the appellee, Bobby Sharp, suffered a back injury during the course and arising out of his employment with Kinco, Inc. At the time of this work-related accident, Continental Casualty Company (CCC), the appellant, provided worker\u2019s compensation insurance coverage for Kinco, Inc. CCC paid Sharp worker\u2019s compensation benefits totaling $128,424.77.\nIn October 1990, Sharp and his wife, Margie, through their attorney James Filyaw, brought a third-party-negligence action against Don Bull, Terracon Consultants S. C., Inc., Terracon Environmental, Inc. and Terracon Consultants E. C., Inc. in Sebastian County Circuit Court seeking damages for Sharp\u2019s 1987 back injury. On February 26,1991, CCC, through retained counsel Wayne Harris, filed a motion to intervene in the third-party suit to preserve its right to a subrogation lien pursuant to Ark. Code Ann. \u00a7 11-9-410 (1987), which reads in relevant part as follows:\n(1) LIABILITY UNAFFECTED.\n(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his decedents, to make claim or maintain an action in Court against any Third Party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action. If they, or either of them, join in the action, they shall be entitled to a first lien upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.\n(2) The commencement of an action by an employee or his dependents against a Third Party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a Third Party shall be applied as follows:\n(A) Reasonable cost of collection shall be deducted.\n(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;\n(C) The remainder, or so much as is necessary to discharge the actual amount of the liability of the employer and the carrier; and\n(D) Any excess shall belong to the inj ured employee or his dependents.\nThe Sharps\u2019 third-party action proceeded to trial, and a verdict was rendered in their favor in the amount of $456,893.60. The court entered judgment on the verdict, and attorney Filyaw, in accordance with his one-third contingency fee agreement with Sharp, received one-third of the gross recovery \u2014 $152,297.86. Filyaw was also reimbursed costs in the amount of $4,170.29. After deducting these costs of collection under \u00a7 11-9-410(a)(2)(A), the net recovery to be distributed (between the Sharps and CCC) under (B), (C) and (D) of \u00a7 11-9-410(a)(2) was $300,425.45. Accordingly, the Sharps were first entitled to one-third of this net figure, or $100,141.81, leaving $200,283.64 as the balance to be distributed. Because the remaining balance exceeded the worker\u2019s compensation benefits CCC had paid Sharp, CCC was reimbursed only the $128,424.77 in benefits it had paid Sharp, and the remaining or excess funds, $71,858.87, were awarded the Sharps, fixing their total recovery at $172,000.68. The Sharps contested CCC\u2019s receiving the full amount of its subrogation-lien amount, arguing CCC should pay one-third of such amount, $42,808.25, as collection costs since CCC exerted no efforts or assistance in pursuing the third-party action.\nMr. Sharp filed this declaratory judgment action against CCC, asserting CCC would be unjustly enriched if it were reimbursed its entire amount of benefits, and the trial court agreed, by granting Sharp\u2019s motion for summary judgment finding that (1) prior to trial of the third-party action, the Sharps requested CCC to share in the cost of prosecuting the third-party action and CCC refused to participate, (2) the recovery of $456,893.60 in the third-party action was due primarily to the efforts of the Sharps\u2019 attorney in investigating, developing, preparing and trying the third-party action and (3) CCC was not entitled to accept the benefits of the services of the Sharps\u2019 attorney without payment of a reasonable attorneys\u2019 fee. The trial court then awarded Sharp one-third of CCC\u2019s subrogation lien amount, $42,808.25. This amount was in addition to the $152,297.86 amount Filyaw received as attorney\u2019s fees or costs of collection in the third-party action. CCC appeals the trial court\u2019s decision awarding this additional amount. While the trial court determined CCC must pay an additional attorney\u2019s fee from its subrogation amount, the court denied Sharp\u2019s contention that CCC must also pay one-third of the costs ($4,170.29) from its subrogation award. Sharp cross-appeals from this part of the trial court\u2019s order. We reverse on appeal and affirm on cross-appeal.\nThe trial court erred in awarding Sharp an attorney\u2019s fee from CCC\u2019s subrogation lien award because the circuit judge presiding over the earlier third-party action had already awarded the Sharps the full amount of attorney\u2019s fee ($ 152,297.86) as part of the \u201ccosts of collection\u201d required under \u00a7 11-9-410(a)(2)(A). Because these fees and costs were initially deducted from the full amount of the third-party judgment before either the Sharps or CCC were distributed their respective statutory awards under \u00a7 ll-9-410(a)(2), CCC effectively paid its proportionate share of the attorney\u2019s fees in the Sharps\u2019 third-party action. No additional attorney\u2019s fee is provided by law.\nIn determining Sharp was entitled to a portion of CCC\u2019s subrogation award as attorney\u2019s fees, the trial court in this action relied upon the cases of Winfrey v. Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W.2d 923 (1954); Phillips v. Morton Frozen Foods, 315 F.Supp. 228, (E.D. Ark. 1970); and Boulden v. Herring, 126 F.Supp. 885, (W.D. Ark. 1954). These cases, however, are inapposite, and were limited to the issue as to whether the attorney\u2019s fees in those cases were reasonable or proper under \u00a7 11-9-410(a)(2)(A). Here, CCC does not contest the amount of attorney\u2019s fees and costs paid the Sharps\u2019 attorney in their third-party action, but rather agrees that the amount paid Filyaw was reasonable.\nAgain, the issue here is whether CCC was required to pay an additional attorney\u2019s fee from its subrogation-lien amount. Sharp presents no legal authority imposing such an additional obligation on CCC\u2019s part, and in fact, the authority we have found is directly to the contrary. Burt v. Hartford Acc. & Indent. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972); 2A Arthur Larson, Workmen\u2019s Compensation Law, Subrogation \u00a7\u00a7 74.32(a)(2); 74.32(b) n. 30 (1992). Our decision in this respect is consistent with this court\u2019s established rule that attorney\u2019s fees are not allowed except when expressly provided for by statute. Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990).\nIn Sharp\u2019s cross-appeal, he points out that, while the trial court below awarded him one-third of CCC\u2019s subrogation interest in attorney\u2019s fees, the court erred in disallowing him an additional amount of costs from CCC\u2019s subrogation award. Once again, the trial court deducted these costs from the full amount of the judgment in the third-party action and awarded these funds to reimburse the Sharps\u2019 attorney the costs he advanced. For the same reasons we held that the trial court erred in awarding additional attorney\u2019s fees as costs of collection, we hold CCC is also not required to pay additional costs from its subrogation award. Simply put, no legal authority requires CCC to pay additional costs, CCC had already paid its statutory or proportionate share of the costs incurred in the third-party action, and it has no further obligation under the law.\nFor the reasons above, we reverse the trial court\u2019s granting of summary judgment to the Sharps on direct appeal and affirm the trial court\u2019s decision on cross-appeal.\nSection 11-9-410 was previously codified as Ark. Stat. Ann. \u00a7 81-1340 (Repl. 1976).",
        "type": "majority",
        "author": "Tom Glaze Justice."
      }
    ],
    "attorneys": [
      "Warner & Smith, by: Wayne Harris, for appellant.",
      "Robert S. Blatt and Timothy L. Sharum, for appellee."
    ],
    "corrections": "",
    "head_matter": "CONTINENTAL CASUALTY CO. v. Bobby C. SHARP\n92-1135\n849 S.W.2d 481\nSupreme Court of Arkansas\nOpinion delivered March 15, 1993\n[Rehearing denied April 19, 1993.]\nWarner & Smith, by: Wayne Harris, for appellant.\nRobert S. Blatt and Timothy L. Sharum, for appellee."
  },
  "file_name": "0286-01",
  "first_page_order": 312,
  "last_page_order": 316
}