{ "id": 11708561, "name": "RAQUEL DEVONE WIGGINS, Administratrix of the Estate of Trevis Marchant Wiggins, Plaintiff v. BUSHRANGER FENCE COMPANY; BUSHRANGER ENTERPRISES, INC.; KING HOLDINGS, INC., d/b/a AAA TRIANGLE FENCE COMPANY; and AAA TRIANGLE FENCE COMPANY, Defendants", "name_abbreviation": "Wiggins v. Bushranger Fence Co.", "decision_date": "1997-04-15", "docket_number": "No. COA96-459", "first_page": "74", "last_page": "78", "citations": [ { "type": "official", "cite": "126 N.C. App. 74" } ], "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": "397 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": -1 }, { "cite": "100 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527036 ], "year": 1990, "opinion_index": -1, "case_paths": [ "/nc-app/100/0490-01" ] }, { "cite": "378 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485437 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0424-01" ] }, { "cite": "369 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "85" }, { "page": "85-86" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525523 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "588" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0585-01" ] }, { "cite": "380 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "512" }, { "page": "511" } ], "opinion_index": 0 }, { "cite": "324 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483015 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "571" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0567-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(j)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "397 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "333" }, { "page": "333" }, { "page": "332" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527036 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "494" }, { "page": "495" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0490-01" ] } ], "analysis": { "cardinality": 541, "char_count": 9482, "ocr_confidence": 0.733, "pagerank": { "raw": 3.160656086174845e-07, "percentile": 0.8632657734099556 }, "sha256": "d8eebeba8c4d05fb3a3083f3410003f01c1a21bfdbdecaf66987368c839990d2", "simhash": "1:bfe1f16634aa55f6", "word_count": 1513 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge WYNN concur." ], "parties": [ "RAQUEL DEVONE WIGGINS, Administratrix of the Estate of Trevis Marchant Wiggins, Plaintiff v. BUSHRANGER FENCE COMPANY; BUSHRANGER ENTERPRISES, INC.; KING HOLDINGS, INC., d/b/a AAA TRIANGLE FENCE COMPANY; and AAA TRIANGLE FENCE COMPANY, Defendants" ], "opinions": [ { "text": "COZORT, Judge.\nThis appeal presents the question of whether the superior court has discretion under N.C. Gen. Stat. \u00a7 97-10.2Q) (1991) to eliminate a subrogation lien on worker\u2019s compensation benefits paid to a fatally injured employee\u2019s family. We hold that it does.\nTrevis Wiggins (decedent) was killed on 3 February 1993 while performing his duties as a night supervisor for the Budget Rent-A-Car agency (the agency) near Raleigh-Durham International Airport. Decedent\u2019s duties included shutting a four hundred pound sliding gate, which blocked entry to the agency\u2019s premises during off-hours. Decedent was killed when the sliding gate detached from its rollers and fell on him. The gate pinned decedent\u2019s throat against an electronic gate arm, asphyxiating him. The North Carolina Industrial Commission awarded dependent benefits to decedent\u2019s wife and two children pursuant to N.C. Gen. Stat. \u00a7 97-38 (1991). Decedent\u2019s family has received approximately $91.00 a week in benefits since the decision of the Industrial Commission, and defendants project an eventual benefit payout of $200,000.00 to them.\nPlaintiff also sued two fence repair companies that had worked on the fence prior to decedent\u2019s death, defendant Bushranger, and defendant AAA Triangle Fence Co. The cases against both of these defendants settled for $900,000.00 prior to trial. After this settlement, Cigna Property & Casualty Company (Cigna) (on behalf of the agency as its worker\u2019s compensation carrier) claimed a lien against the proceeds of the $900,000.00 settlement.\nIn response to this claim of lien, plaintiff requested a court hearing pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j) to determine whether the agency and Cigna were due any of the settlement proceeds. After hearing the arguments of counsel at the \u00a7 97-10.2Q) hearing, the trial court made the following findings of fact:\n5. Defendant Bushranger and defendant AAA Triangle Fence Company, in response to plaintiff\u2019s complaint, filed allegations that the employer, Budget Rent-A-Car Systems, Inc., was negligent for failing to maintain, repair or replace the cantilever roller gate and that such negligence was a proximate cause of Trevis Wiggins\u2019 death.\n6. In August, 1990, defendant Bushranger advised the management of Budget that the cantilever roller gate was very dangerous, that it could fall down, and defendant Bushranger recommended that the employer, Budget, replace the gate for safety reasons. Budget chose not to replace the gate.\n7. On numerous occasions before February 3, 1993, the date of Trevis Wiggins\u2019 death, employees of Budget Rent-A-Car Systems, Inc., including Mabeline Bell and Malinda Brown, complained to the management of Budget that the cantilever roller gate was difficult to operate, that it had fallen off the rollers and that the gate was in need of repair. Instead of repairing or replacing the cantilever roller gate, Budget chose to place the gate back on the rollers and continue using the gate without repair or modification.\n8. The plaintiff and the defendant Bushranger and defendant AAA Triangle Fence Company settled the third party claim for the sum of $900,000.00.\nOn these findings, and others not outlined here, the trial court concluded:\nBased upon the foregoing findings, and in the exercise of discretion of the court pursuant to N.C.G.S. \u00a7 97-10.2, the court concluded that the employer Budget shall recover no amount and shall have no lien on the third party settlement proceeds.\nWe find no error with the trial court\u2019s disposition of this case under \u00a7 97-10.20).\nDefendants primarily rely on Williams by Heidgerd v. International Paper Co., 324 N.C. 567, 571, 380 S.E.2d 510, 512 (1989), for the proposition that \u201cG.S. 97-10.20) does not provide a Superior Court judge the authority to determine issues surrounding either the alleged negligence of the employer or the effect that any such negligence will have on the subrogation lien, as subsection (e) of the statute provides that the employer is entitled to a iurv trial on those issues.\u201d (Emphasis in defendants\u2019 brief). Defendants\u2019 reliance on Williams, and their arguments based upon it, are misplaced.\nWilliams is inapplicable here for two reasons. First, the central issue in Williams was \u201cwhether an employer is entitled to a jury trial on the issue of employer negligence under N.C.G.S. \u00a7 97-10.2(e) in a tort action brought by an injured employee against third parties who allege that the employer is . . . liable for the employee\u2019s injuries.\u201d Williams, 324 N.C. at 568, 380 S.E.2d at 511. Simply put, the issues surrounding this appeal are not grounded in tort, and the instant trial court\u2019s order did not involve a determination of defendant Budget Rent-A-Car\u2019s negligence. Rather, the only issue here is whether the trial court abused its discretion by allowing no lien in favor of defendants. See Allen v. Rupard, 100 N.C. App. 490, 494, 397 S.E.2d 330, 333 (1990).\nSecond, it is important to note that material changes have been made to \u00a7 97-10.2(j) since 1989, the date of the Williams decision. The Williams decision appeared to limit the discretion of a trial court in making subrogation allocations and in allowing a jury trial where negligence was a subrogation factor. The new version of \u00a7 97-10.2Q), amended in 1991, reads as follows:\n(j) Notwithstanding anv other subsection in this section, in the event that a judgment is obtained which is insufficient to compensate the subrogation claim of the Workers\u2019 Compensation Insurance Carrier, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge . . . to determine the subrogation amount. After notice to the employer and the insurance carrier, after an opportunity to be heard bv all interested parties, and with or without the consent of the employer, the judge shall determine, in his discretion, the amount, if anv. of the employer\u2019s lien and the amount of cost of the third-partv litigation to be shared between the employee and employer.\n1991 N.C. Sess. Laws ch. 408, \u00a7 1 (pertinent additions to statute underlined).\nIt is manifest that the phrases \u201cnotwithstanding any other subsection in this section\u201d and \u201cthe judge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien\u201d represent the legislature\u2019s intent to alter existing case law by amending the statute. These changes alter the Williams decision by making it clear that: (1) subsection (j) is independent from the other \u00a7 97-10.2 subsections such as \u00a7 97-10.2(e), and, (2) that the Superior Court has discretionary authority to determine the lien amount.\nEven before the 1991 amendments, this Court \u201cheld that subsection (j) [gives] the trial court \u2018discretion\u2019 in deciding how to distribute the settlement proceeds.\u201d Rupard, 100 N.C. App. at 495, 397 S.E.2d at 333 (quoting Pollard v. Smith, 90 N.C. App. 585, 588, 369 S.E.2d 84, 85 (1988), rev\u2019d on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989)). The Rupard Court also established that the trial court\u2019s discretion \u201cis not unbridled or unlimited. Rather, [when considering a \u00a7 97-10.2Q) lien allocation,] the trial court is to make a reasoned choice, a judicial value judgment, which is factually supported . . . [by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review.\u201d Id. Thus, to the extent that defendants assert the trial court improperly rendered findings of fact on the equities in this case, they are incorrect. In light of the instant facts, findings of fact numbers five, six, and seven are the proper reasoned choices and value judgments mandated by Rupard.\nWe are cognizant of the potential for plaintiff to receive a double recovery via the operation of \u00a7 97-10.2(j). However, this issue was raised in Pollard and in Rupard, and in those cases, we determined that the statute contemplated and allowed for such a recovery if justified by the equities of the case. Pollard, 90 N.C. App. at 588, 369 S.E.2d at 85-86; Rupard, 100 N.C. App. at 494, 397 S.E.2d at 332. We see no need to revisit the analysis of those decisions. Accordingly, for the reasons stated above, we affirm.\nAffirmed.\nChief Judge ARNOLD and Judge WYNN concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Teague, Campbell, Dennis & Gorham, L.L.P, by George W. Dennis, III, and Bryan T. Simpson, for defendant appellants.", "Edwards & Kirby, L.L.P., by David F. Kirby and William B. Bystrynski, for plaintiff appellee." ], "corrections": "", "head_matter": "RAQUEL DEVONE WIGGINS, Administratrix of the Estate of Trevis Marchant Wiggins, Plaintiff v. BUSHRANGER FENCE COMPANY; BUSHRANGER ENTERPRISES, INC.; KING HOLDINGS, INC., d/b/a AAA TRIANGLE FENCE COMPANY; and AAA TRIANGLE FENCE COMPANY, Defendants\nNo. COA96-459\n(Filed 15 April 1997)\nWorkers\u2019 Compensation \u00a7 85 (NCI4th)\u2014 fatally injured employee \u2014 settlement with tortfeasors \u2014 compensation carrier\u2019s subrogation lien \u2014 elimination by trial court\nPursuant to N.C.G.S. \u00a7 97-10.2(j), the trial court did not abuse its discretion by eliminating the employer\u2019s compensation carrier\u2019s subrogation lien on the proceeds of a tort settlement paid to a fatally injured employee\u2019s family where the trial court made the proper reasoned choices and value judgments as mandated in Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990).\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 110, 451.\nAppeal by defendants from order entered 6 December 1995 by Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 13 January 1997.\nTeague, Campbell, Dennis & Gorham, L.L.P, by George W. Dennis, III, and Bryan T. Simpson, for defendant appellants.\nEdwards & Kirby, L.L.P., by David F. Kirby and William B. Bystrynski, for plaintiff appellee." }, "file_name": "0074-01", "first_page_order": 112, "last_page_order": 116 }