{ "id": 11914520, "name": "DAVID EUGENE RADZISZ, Plaintiff-Employee v. HARLEY DAVIDSON OF METROLINA, INC., Defendant-Employer, and UNIVERSAL UNDERWRITERS, Defendant-Carrier", "name_abbreviation": "Radzisz v. Harley Davidson of Metrolina, Inc.", "decision_date": "1996-08-20", "docket_number": "No. COA95-323", "first_page": "602", "last_page": "609", "citations": [ { "type": "official", "cite": "123 N.C. App. 602" } ], "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": "7 ALR5th 969", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "295 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 0 }, { "cite": "306 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573544 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "709" }, { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0706-01" ] }, { "cite": "180 S.E. 592", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "page": "593-94" } ], "opinion_index": 0 }, { "cite": "208 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603297 ], "year": 1935, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/208/0289-01" ] }, { "cite": "290 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570211, 8570083, 8570149, 8570194, 8570168 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0395-05", "/nc/305/0395-01", "/nc/305/0395-02", "/nc/305/0395-04", "/nc/305/0395-03" ] }, { "cite": "284 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "752" }, { "page": "752" }, { "page": "752" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526858 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "131" }, { "page": "131" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0124-01" ] }, { "cite": "438 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "469", "parenthetical": "citing 2A Arthur Larson, The Law of Workmen's Compensation \u00a7 74.31(a), at 14-481 (1993)" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522201 ], "year": 1994, "pin_cites": [ { "page": "358", "parenthetical": "citing 2A Arthur Larson, The Law of Workmen's Compensation \u00a7 74.31(a), at 14-481 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0354-01" ] }, { "cite": "292 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525556 ], "year": 1982, "pin_cites": [ { "page": "644-45" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0643-01" ] }, { "cite": "250 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "296 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566139 ], "year": 1979, "pin_cites": [ { "page": "368-69" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0366-01" ] }, { "cite": "248 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "63" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553428 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "292" }, { "page": "291-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0288-01" ] } ], "analysis": { "cardinality": 695, "char_count": 15260, "ocr_confidence": 0.753, "pagerank": { "raw": 2.1618190013584225e-07, "percentile": 0.7698502885689474 }, "sha256": "e569cd6f9f6dfd93aff2de7b587fe849f15cad3cccd20b9e99661478e32beb82", "simhash": "1:dc22f17f56bb9a4d", "word_count": 2352 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "DAVID EUGENE RADZISZ, Plaintiff-Employee v. HARLEY DAVIDSON OF METROLINA, INC., Defendant-Employer, and UNIVERSAL UNDERWRITERS, Defendant-Carrier" ], "opinions": [ { "text": "JOHN, Judge.\nDefendants appeal an award to plaintiff of benefits under the Worker\u2019s Compensation Act (the Act) by the North Carolina Industrial Commission (the Commission), contending the \u201cCommission err[ed] in concluding defendants were not entitled to a subrogation interest or lien interest against the third-party settlement received by plaintiff [under] N.C.G.S. \u00a7 97-10.2.\u201d We agree.\nPertinent factual and procedural background information is as follows: Plaintiff, a motorcycle mechanic employed by defendant-appellant Harley-Davidson of Metrolina, Inc. (Harley), was involved in a collision with an automobile 1 June 1990 while operating a customer\u2019s motorcycle. As a consequence of injuries received in the accident, plaintiff subsequently filed both a workers\u2019 compensation claim with defendants and a civil action against the owners of the automobile (\u201cthird-party\u201d). Defendants denied the claim, and defendant Universal Underwriters (Universal), Harley\u2019s workers\u2019 compensation carrier, informed the third-party\u2019s liability insurance carrier of defendants\u2019 potential subrogation lien against any civil recovery. Universal further requested that no settlement funds be disbursed to plaintiff until the lien had been satisfied.\nOn 24 September 1990, plaintiff and the third-party agreed to a settlement of the civil action in the amount of $25,000. On 8 November 1990, plaintiff and defendants entered into a Settlement Stipulation, providing in relevant part as follows:\nIn order to accommodate the potential workers\u2019 compensation lien on the proceeds of the civil action, [the parties] hereby execute this Stipulation and Agreement whereby [plaintiff] stipulates that if his worker\u2019s compensation claim is upheld by the Industrial Commission or if [defendants] file a written admission of liability for benefits with the Commission, [defendants] will have a lien, as provided in G.S. \u00a7 97-10.2, against these proceeds, and stipulates that they will be entitled to a credit against the workers compensation benefits to the extent that they have a subrogation interest in the proceeds of the settlement of the civil action. The amount of this subrogation interest is to be determined as if the civil action were settled after the total amount of the worker\u2019s compensation lien is determined by the Industrial Commission or a court, and is to be determined in accordance with G.S. \u00a7 97-10.2. The parties specifically reserve the right to contest the issue of the amount of the lien. ... As of the date of execution of this agreement, [plaintiff] contends that no such interest exists in this case. This Agreement is not to be construed as granting or conceding the existence of any potential subro-gation interest until [plaintiff\u2019s] workers compensation claim is honored.\nA Consent Order requiring payment of $25,000 by the third-party to plaintiff was thereafter entered 16 November 1990, and the funds were subsequently disbursed to plaintiff.\nFollowing a 24 April 1992 hearing before a deputy commissioner, plaintiff was awarded workers\u2019 compensation benefits. The deputy commissioner further determined that \u201c[p]ursuant to the agreement between all the parties to the consent judgment,\u201d defendants were entitled to a lien or credit against plaintiff\u2019s recovery from the third-party.\nPlaintiff appealed to the Full Commission, which, in a 13 December 1994 Opinion and Award, concluded:\nAs defendants did not admit liability for [plaintiffs] injury and instead denied and contested liability, and as no final award has been entered by the Industrial Commission, defendants shall have no subrogation interest or lien [under G.S. \u00a7 97-10.2(f)(l)] as to the $25,000 third party settlement.\nContinuing, the Commission noted:\n[t]he settlement stipulation entered into by the parties does not purport... to create a subrogation interest. . .[in that] N.C.G.S. \u00a7 97-10.2\u2019s requirements, and not any stipulated agreement to another effect by the parties, controls this matter.\nFrom this order, defendants filed timely notice of appeal.\nThe issue presented is whether the Commission erred in denying defendants a subrogation or lien interest against the proceeds received by plaintiff in settlement of the civil action.\nDistribution of amounts recovered from a third party tortfeasor, and the rights of the employee, the employer, and the employer\u2019s insurance carrier with respect thereto, are governed by G.S. \u00a7 97-10.2. See Hogan v. Johnson Motor Lines, 38 N.C. App. 288, 292, 248 S.E.2d 61, 63 (1978). The 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 . . . 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....\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.\n(g) The insurance carrier affording coverage to the employer under this Chapter shall be subrogated to all rights and liabilities of the employer hereunder ....\n(h) In any proceeding against or settlement with the third party, every party to the claim for compensation shall have a lien to the extent of his interest under (f) hereof upon any payment made by the third party by reason of such injury or death . . . and such lien may be enforced against any person receiving such funds. Neither the employee . . . nor the employer shall make any settlement with or accept any payment from the third party without the written consent of the other ....\nG.S. \u00a7 97-10.2(f)(g)(h) (1991).\nIn the case sub judice, plaintiff maintains the Commission correctly interpreted G.S. \u00a7 97-10.2, asserting that \u201ceither a written admission or a final award is a condition precedent for [defendants] to claim a lien on third-party proceeds.\u201d As neither had taken place at the time of settlement between plaintiff and the third-party, plaintiff continues, defendants possessed no subrogation interest in the settlement funds.\nConversely, defendants argue the Commission\u2019s denial of a subrogation interest amounted to \u201can incorrect application of [G.S. \u00a7 97-10.2(f)(l)] and interpretation of] case law.\u201d Specifically, defendants contend G.S. \u00a7 97-10.2 \u201centitles [them] to a subrogation interest or lien against the third-party settlement received by plaintiff,\u201d and \u201cthe settlement stipulation and agreement signed by [the parties] acknowledges [such] rights . . . .\u201d\nResolution of the issue herein requires construction of G.S. \u00a7 97-10.2 in such a manner as fulfills the legislative intent and purpose. See Ross Realty Co. v. First Citizens Bank & Trust Co., 296 N.C. 366, 368-69, 250 S.E.2d 271, 273 (1979). \u201cIn seeking to discover this intent, [we must] consider the language of the statute, the spirit of the act, and what the act seeks to accomplish.\u201d See Taylor v. J. P. Stevens, 57 N.C. App. 643, 644-45, 292 S.E.2d 277, 279 (1982).\nInitially, we observe that \u201c[t]he payor of benefits under the Workers\u2019 Compensation Act is generally entitled to reimbursement from the proceeds received from the third party tortfeasor.\u201d Buckner v. City of Asheville, 113 N.C. App. 354, 358, 438 S.E.2d 467, 469 (1994) (citing 2A Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 74.31(a), at 14-481 (1993)). Reimbursement \u201cof any duplicative amounts received\u201d protects against double recovery because where \u201c[t]here is one injury, [there is] still only one recovery.\u201d See Andrews v. Peters, 55 N.C. App. 124, 131, 284 S.E.2d 748, 752 (1981), disc. review denied, 305 N.C. 395, 290 S.E.2d 364 (1982). Indeed, most jurisdictions hold public policy requires prohibition of double recovery in that\n[i]t is . . . elementary that the [employee] should not be allowed to keep the entire amount both of his [workers\u2019] compensation award and of his common-law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse [it] for [its] compensation outlay, and to give the employee the excess. This is fair to everyone concerned: the employer, wh[ich] in a fault sense, is neutral, comes out even; the third person pays exactly the damages he would normally pay.. . and the employee gets a fuller reimbursement for actual damages sustained than is possible under the compensation system alone.\n2A Larson at \u00a7 71.20.\nOur Supreme Court has likewise applied this principle of prohibition against double-recovery to negligence actions against multiple tortfeasors, stating:\n[T]he weight of both authority and reason is to the effect that any amount paid by anybody, whether they be joint tort-feasors or otherwise, for and on account of any injury or damage should be held for a credit on the total recovery in any action for the same injury or damage.\nHolland v. Southern Public Utilities Co. Inc., 208 N.C. 289, 292, 180 S.E. 592, 593-94 (1935).\nBearing the foregoing in mind, we commence analysis of G.S. \u00a7 97-10.2 by examination of the express statutory language. Contrary to plaintiffs assertions, the provisions of the statute cannot logically be construed as requiring establishment of a \u201ccondition precedent\u201d in the nature of a \u201cwritten admission or a final award\u201d before a payor of workers\u2019 compensation benefits obtains subrogation rights. Rather, we believe the section mandates that the payor of benefits be reimbursed with \u201cduplicative amounts received\u201d by plaintiff from a civil suit, see Andrews, 55 N.C. App. at 131, 284 S.E.2d at 752, regardless of which recovery (workers\u2019 compensation or civil action) occurs first.\nFor example, sub-section (h) of G.S. \u00a7 97-10.2 explicitly establishes that \u201cevery party to the claim for compensation shall have a lien to the extent of his interest under (f) hereof upon any payment made by the third party . . . ,\u201d but contains no provision for any temporal requirement to such a lien. The language \u201cto the extent of his interest under (f)\u201d thus refers to the priority of benefits set out in subsection (f)(l)(a.)-(d.), and does not, as plaintiff insists, require that defendants have made payment of \u201ccompensation or medical benefits ... at the time the third party made payment, [or else] the extent of [defendants\u2019] interest in the lien under subsection (f) was zero.\u201d As defendants aptly contend, \u201cthe legislature certainly never intended that the employee gain a double recovery by settling his third-party claim first, claiming payments under the Act second, and denying the employer reimbursement third.\u201d See Hogan v. Johnson Motor Lines, 38 N.C. App. 288, 291-92, 248 S.E.2d 61, 63 (1978) (protection of employer\u2019s right to reimbursement and prohibition against double-recovery by injured employee continuously maintained in Act by General Assembly, although original requirement that employee elect between receiving compensation under Act and seeking judgment against third party later modified to allow employee to seek recovery both through Act and civil suit).\nFinally, such an interpretation of G.S. \u00a7 97-10.2(f) accomplishes the \u201ctwo-fold\u201d purpose of the Act, i.e., \u201cto provide swift and sure compensation to injured workers without the necessity of protracted litigation,\u201d and to \u201cinsure [] a limited and determinate liability for employers.\u201d Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 709, 295 S.E.2d 458, 460 (1982). For example, an employer\u2019s right to consent in writing to a settlement between the injured worker and a third-party, as contemplated by G.S. \u00a7 97-10.2(h), is preserved without the employer sacrificing the opportunity to contest liability under the Act. Moreover, protection against double recovery by the injured employee is afforded through the provisions for employer reimbursement. See Andrews, 55 N.C. App. at 131, 284 S.E.2d at 752. On the other hand, an injured employee may recover immediately from the third-party and without a delay caused by the pending resolution of the workers\u2019 compensation claim, thereby accomplishing \u201cswift and sure compensation to injured workers.\u201d Rorie, 306 N.C. at 709, 295 S.E.2d at 460. In sum, this interpretation produces a\n\u2022 fair [outcome to] everyone concerned: the employer . . . comes out even; the third [party] pays exactly the damages he would normally pay, . . . and the employee gets a fuller reimbursement for actual damages sustained than is possible under the compensation system alone.\nSee 2A Larson \u00a7 71.20.\nWe therefore hold the General Assembly intended G.S. \u00a7 97-10.2(f) to mandate reimbursement of defendants in the case sub judice, and the Commission thus erred in determining defendants possessed no lien interest in sums received by plaintiff through settlement with the third-party tortfeasor prior to resolution of the instant workers\u2019 compensation claim. Although the Settlement Stipulation between the parties properly served as defendants\u2019 written consent to the settlement between plaintiff and the third-party tortfeasors, it created no rights other than those already existing under G.S. \u00a7 97-10.2.\nFor the reasons stated herein, the Order and Award of the Full Commission is reversed, and this matter remanded for further proceedings consistent with this opinion.\nReversed.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Tim L. Harris & Associates, by Rebecca L. Thomas, for plaintiff-appellee.", "Golding, Meekins, Holden, Gosper & Stiles, by Henry C. Byrum, Jr. and Scott A. Beckey, for defendants-appellants." ], "corrections": "", "head_matter": "DAVID EUGENE RADZISZ, Plaintiff-Employee v. HARLEY DAVIDSON OF METROLINA, INC., Defendant-Employer, and UNIVERSAL UNDERWRITERS, Defendant-Carrier\nNo. COA95-323\n(Filed 20 August 1996)\nWorkers\u2019 Compensation \u00a7 86 (NCI4th)\u2014 settlement with third-party tortfeasor \u2014 reimbursement of employer and workers\u2019 compensation carrier required\nThe General Assembly intended N.C.G.S. \u00a7 97-10.2(f) to mandate reimbursement of defendant employer and defendant work-\ners\u2019 compensation carrier, and the Industrial Commission thus erred in determining defendants possessed no lien interest in sums received by plaintiff through settlement with the third-party tortfeasor prior to resolution of this workers\u2019 compensation claim.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 456.\nRight of workers\u2019 compensation insurer or employer paying to a workers\u2019 compensation fund, on the compensa-ble death of an employee with no dependents, to indemnity or subrogation from proceeds of wrongful death action brought against third-party tortfeasor. 7 ALR5th 969.\nAppeal by defendants from Opinion and Award entered 13 December 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 7 December 1995.\nTim L. Harris & Associates, by Rebecca L. Thomas, for plaintiff-appellee.\nGolding, Meekins, Holden, Gosper & Stiles, by Henry C. Byrum, Jr. and Scott A. Beckey, for defendants-appellants." }, "file_name": "0602-01", "first_page_order": 636, "last_page_order": 643 }