{ "id": 11911983, "name": "GLADYS P. CREED, Administratrix of the estate of JIMMY GRAY CREED, Deceased, Employee-Plaintiff v. R.G. SWAIM and SON, INC., Employer, NATIONWIDE MUTUAL INSURANCE COMPANY, Carrier, Defendant", "name_abbreviation": "Creed v. R.G. Swaim & Son, Inc.", "decision_date": "1996-07-02", "docket_number": "No. COA95-645", "first_page": "124", "last_page": "129", "citations": [ { "type": "official", "cite": "123 N.C. App. 124" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "page": "(f)" } ], "opinion_index": -1 }, { "cite": "7 ALR5th 969", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "430 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531661 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0001-01" ] }, { "cite": "410 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "15", "parenthetical": "quoting Ensley, 80 N.C. App. at 515, 342 S.E.2d at 569" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522013 ], "year": 1991, "pin_cites": [ { "page": "424", "parenthetical": "quoting Ensley, 80 N.C. App. at 515, 342 S.E.2d at 569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0419-01" ] }, { "cite": "349 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736197, 4739208, 4740563, 4736150, 4733690 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0414-05", "/nc/318/0414-01", "/nc/318/0414-03", "/nc/318/0414-02", "/nc/318/0414-04" ] }, { "cite": "342 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "569" }, { "page": "569" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524649 ], "weight": 2, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0512-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "page": "(b)(3)" } ], "opinion_index": 0 }, { "cite": "447 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539104, 2537890, 2538279, 2534383, 2538558 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0602-05", "/nc/336/0602-02", "/nc/336/0602-04", "/nc/336/0602-03", "/nc/336/0602-01" ] }, { "cite": "438 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "470" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522201 ], "weight": 2, "pin_cites": [ { "page": "360-61" }, { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0354-01" ] }, { "cite": "435 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522276 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0502-01" ] }, { "cite": "434 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520040 ], "year": 1993, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0047-01" ] }, { "cite": "396 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496109, 2499343, 2497841, 2493556, 2494197 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0484-05", "/nc/327/0484-04", "/nc/327/0484-02", "/nc/327/0484-03", "/nc/327/0484-01" ] }, { "cite": "392 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "649" }, { "page": "650" }, { "page": "649" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521334 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "134" }, { "page": "136" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0131-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "opinion_index": 0 } ], "analysis": { "cardinality": 522, "char_count": 11095, "ocr_confidence": 0.759, "pagerank": { "raw": 6.913811270993217e-08, "percentile": 0.42002313648401896 }, "sha256": "86baa4131eb108cd31283278f13b7863e4fc87bf7324736afe27f611a60be350", "simhash": "1:79609150703b9c98", "word_count": 1736 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and MARTIN, Mark D., concur." ], "parties": [ "GLADYS P. CREED, Administratrix of the estate of JIMMY GRAY CREED, Deceased, Employee-Plaintiff v. R.G. SWAIM and SON, INC., Employer, NATIONWIDE MUTUAL INSURANCE COMPANY, Carrier, Defendant" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nThe sole issue on appeal is whether Nationwide, as the workers\u2019 compensation carrier, is entitled to be subrogated to plaintiff\u2019s under-insured motorist benefits. Plaintiff argues that the Commission erred in concluding that Nationwide has a lien on the proceeds of plaintiff\u2019s underinsured motorist policy. We disagree.\nThe rights and interests of the employee-beneficiary, the employer, and the employer\u2019s insurance carrier, with respect to a tort action against a third party, are governed by N.C. Gen. Stat. \u00a7 97-10.2 (1991). This statute provides, in pertinent part:\n(f)(1) If the employer has filed a written admission of liability for benefits under this Chapter with, or if an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by any person by settlement with, judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:\na. First to the payment of actual court costs taxed by judgment and/or reasonable expenses incurred by the employee in the litigation of the third-party claim.\nb. Second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and except for the fee on the subrogation interest of the employer such fee shall not be subject to the provisions of G.S. 97-90 but shall not exceed one third of the amount obtained or recovered of the third party.\nc. Third to the reimbursement of the employer for all benefits by way of compensation or medical compensation expense paid or to be paid by the employer under award of the Industrial Commission.\nd. Fourth to the payment of any amount remaining to the employee or his personal representative.\nThe Commission relied on Ohio Casualty Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647, disc. review denied, 327 N.C. 484, 396 S.E.2d 614 (1990), to conclude that \u201c[a] recovery from the employee\u2019s uninsured/underinsured carrier is included in the statutory reference to \u2018any amount obtained by . . . settlement with . . . the third party\u2019 in N.C.G.S. \u00a7 97-10.2(f)(1).\u201d In Ohio Casualty, this Court considered whether an employer\u2019s workers\u2019 compensation insurance carrier had a lien on the benefits of an underinsured motorist policy purchased by the plaintiff employee. We held that\nN.C. Gen. Stat. \u00a7 97-10.2 provides for the subrogation of the workers\u2019 compensation insurance carrier ... to the employer\u2019s right, upon reimbursement of the employee, to any payment, including uninsured/underinsured motorist insurance proceeds, made to the employee by or on behalf of a third party as a result of the employee\u2019s injury.\nOhio Casualty, 99 N.C. App. at 134, 392 S.E.2d at 649. In Bailey v. Nationwide Mut. Ins. Co., 112 N.C. App. 47, 54, 434 S.E.2d 625, 630 (1993), another case involving an employee\u2019s underinsured motorist policy, we stated:\nJust as our Court held that the workers\u2019 compensation carrier had a lien against the UM/UIM coverage purchased by the plaintiff in Ohio Casualty Group v. Owens, we find that defendant [workers\u2019 compensation carrier] has a subrogation lien on the UM policy proceeds on the case herein.\nSee also Hieb v. St. Paul Fire & Marine Ins: Co., 112 N.C. App. 502, 435 S.E.2d 826 (1993). In other words, \u201can employer who has paid workers\u2019 compensation benefits to its employee is entitled to a lien on the employee\u2019s underinsured motorist benefits received by the employee in an action by the employee against the tortfeasor.\u201d Buckner v. City of Asheville, 113 N.C. App. 354, 360-61, 438 S.E.2d 467, 470 (citing Ohio Casualty, 99 N.C. App. at 136, 392 S.E.2d at 650), disc. review denied, 336 N.C. 602, 447 S.E.2d 385 (1994).\nPlaintiff contends that Ohio Casualty is distinguishable because it involved an employee\u2019s underinsured motorist policy, while the instant case involves an underinsured motorist policy purchased by the employee\u2019s wife. This Court found in Buckner that whether an underinsured motorist policy is an employer\u2019s or an employee\u2019s \u201cis unimportant.\u201d Buckner, 113 N.C. App. at 361, 438 S.E.2d at 470. Likewise, under G.S. \u00a7 97-10.2(f), we find that the distinction between an underinsured motorist policy purchased by the employee and one covering the employee but purchased by his spouse while a resident of the same household is unimportant. See N.C. Gen. Stat. \u00a7 20-279.21(b)(3) (1993). Contrary to plaintiff\u2019s contention, we find Ohio Casualty controlling.\nPlaintiff also argues that G.S. \u00a7 97-10.2, which provides for an employer\u2019s lien against amounts its employee obtains from a third party, refers to payment only from the tortfeasor, and recovery from plaintiff\u2019s underinsured motorist carrier would not constitute payment from the third party. We disagree.\nAs this Court noted in Ohio Casualty, G.S. \u00a7 97-10.2 provides for subrogation of the workers\u2019 compensation insurance carrier to the employer\u2019s right to payment made to the employee by or \u201con behalf of\u201d a third party. Ohio Casualty, 99 N.C. App. at 134, 392 S.E.2d at 649. Under G.S. \u00a7 20-279.21(b)(3), underinsured motorist coverage is\nprovided for damage which plaintiff \u201cis legally entitled to recover\u201d from the owner or operator of an uninsured motor vehicle. . . . Thus, by the uninsured motorist coverage . . . defendant assumed, up to its policy limits, the liability of the uninsured motorist for damages which the plaintiff is legally entitled to recover from the uninsured motorist.\nEnsley v. Nationwide Mut. Ins. Co., 80 N.C. App. 512, 515, 342 S.E.2d 567, 569 (citation omitted), cert. denied, 318 N.C. 414, 349 S.E.2d 594 (1986). Accordingly, G.S. \u00a7 20-279.21(b)(3) \u201c \u2018provides for a limited type of compulsory automobile liability coverage against uninsured motorists.\u2019 \u201d Id. (citation omitted). An action under an underinsured motorist policy is \u201c \u2018actually one for the tort allegedly committed by the uninsured motorist.\u2019 \u201d Baxley v. Nationwide Mutual Ins. Co., 104 N.C. App. 419, 424, 410 S.E.2d 12, 15 (1991) (quoting Ensley, 80 N.C. App. at 515, 342 S.E.2d at 569), aff\u2019d, 334 N.C. 1, 430 S.E.2d 895 (1993). Thus, the benefits under plaintiff\u2019s underinsured motorist policy are payable \u201con behalf of\u2019 the third party tortfeasor, and Nationwide has a lien on the proceeds of plaintiff\u2019s underinsured motorist policy.\nThe Opinion and Award of the Full Commission is\nAffirmed.\nJudges WYNN and MARTIN, Mark D., concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Gardner, Gardner, & Johnson, by Carroll F. Gardner and John C. W. Gardner, Jr., for plaintiff appellant.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Linda Stephens and Donald F. Lively, for defendant appellees." ], "corrections": "", "head_matter": "GLADYS P. CREED, Administratrix of the estate of JIMMY GRAY CREED, Deceased, Employee-Plaintiff v. R.G. SWAIM and SON, INC., Employer, NATIONWIDE MUTUAL INSURANCE COMPANY, Carrier, Defendant\nNo. COA95-645\n(Filed 2 July 1996)\nInsurance \u00a7 530 (NCI4th); Workers\u2019 Compensation \u00a7 86 (NCI4th)\u2014 UIM coverage \u2014 employer\u2019s lien for workers\u2019 compensation paid to employee\nAn employer who has paid workers\u2019 compensation benefits to its employee is entitled to a lien on the employee\u2019s UIM benefits received by the employee in an action by the employee against the tortfeasor, and it is unimportant whether the policy in question is purchased by the employee or by his spouse residing in the same household; furthermore, N.C.G.S. \u00a7 97-10.2, which provides for an employer\u2019s lien against amounts its employee obtains from a third party, refers to payment from the tortfeasor and the UIM carrier.\nAm Jur 2d, Insurance \u00a7\u00a7 1793-1799; Workers\u2019 Compensation \u00a7 456.\nRight of workers\u2019 compensation insurer or employer paying to a compensation fund, on the compensable death of employee with no dependents, to indemnity or subrogation from proceeds of wrongful death action brought against third-party tortfeasor. 7 ALR5th 969.\nAppeal by plaintiff from Opinion and Award entered 19 January 1995 by the Full Industrial Commission. Heard in the Court of Appeals 28 February 1996.\nThis case arises from an accident that occurred on 13 November 1990, in which plaintiff decedent, Jimmy G. Creed, was fatally injured while in the course and scope of employment with defendant R. G. Swaim and Son, Inc. The accident was caused by the negligence of a third party, Carol Mimms, when she lost control of her vehicle and struck Mr. Creed, who was working on the highway installing pipes for his employer.\nDefendant Nationwide Mutual Insurance Company (Nationwide), the workers\u2019 compensation carrier for defendant employer, admitted liability for the accident and entered into a Form 21 agreement. Pursuant to this agreement, Nationwide paid decedent\u2019s wife and administratrix of his estate, plaintiff Gladys P. Creed, $165.12 in temporary total disability benefits for the three-day period of decedent\u2019s disability before his death.\nPlaintiff and defendants then entered into a Form 30 agreement for compensation and death benefits, which was approved by order of the Industrial Commission on 21 February 1991. Pursuant to the agreement and order, Nationwide owes plaintiff 400 weekly payments of $385.29 in death benefits, totalling $154,116.00. In addition, Nationwide paid $38,064.05 in medical charges for the treatment of decedent before his death and $2,000.00 in funeral benefits.\nThe vehicle involved in the accident was insured under a policy issued to Ms. Mimms\u2019s husband, Edward Lee Mimms, by North Carolina Farm Bureau Mutual Insurance Company, with a per-person limit of liability of $50,000.00. Decedent\u2019s wife had purchased a personal automobile policy from First of Georgia Insurance Company, which provided underinsured motorist coverage of $100,000.00 per person, applicable to the damages recoverable by decedent\u2019s estate. Farm Bureau tendered the limits of its liability coverage in the amount of $50,000.00, and First of Georgia has $50,000.00 available in underinsured motorist coverage \u2014 representing the limits of its under-insured motorist coverage of $100,000.00 minus the $50,000.00 in liability coverage paid by Farm Bureau. The parties agree that pursuant to N.C. Gen. Stat. \u00a7 97-10.2(f) (1991), Nationwide has a workers\u2019 compensation lien against the $50,000.00 in liability insurance benefits payable by Farm Bureau. There are no other insurance policies providing coverage for the accident.\nOn 9 January 1992 the Industrial Commission entered an Order of Distribution denying subrogation rights to Nationwide with respect to plaintiff\u2019s underinsured motorist benefits payable by First of Georgia. On this basis, defendants moved to rescind the Order of Distribution, and the Commission subsequently vacated and set aside the order. In lieu of a hearing, the parties entered into a stipulation of facts. Deputy Commissioner Edward Garner, Jr., reinstated the Order of Distribution on 11 January 1994, but on 19 January 1995 the Full Commission reversed and granted Nationwide subrogation rights with regard to plaintiff\u2019s underinsured motorist coverage. Plaintiff now appeals.\nGardner, Gardner, & Johnson, by Carroll F. Gardner and John C. W. Gardner, Jr., for plaintiff appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Linda Stephens and Donald F. Lively, for defendant appellees." }, "file_name": "0124-01", "first_page_order": 158, "last_page_order": 163 }