{ "id": 9496468, "name": "NORMAN J. LEVASSEUR, Plaintiff-Appellee v. BILLY JOE LOWERY, Defendant, BEAM ELECTRIC CO., INC., Intervenor-Appellant KEY RISK MANAGEMENT SERVICES INC., Intervenor-Appellant", "name_abbreviation": "Levasseur v. Lowery", "decision_date": "2000-08-01", "docket_number": "No. COA99-598", "first_page": "235", "last_page": "246", "citations": [ { "type": "official", "cite": "139 N.C. App. 235" } ], "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": "495 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 545275 ], "year": 1990, "pin_cites": [ { "page": "333", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ga-app/230/0074-01" ] }, { "cite": "100 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527036 ], "year": 1990, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0490-01" ] }, { "cite": "480 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11866773 ], "year": 1997, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0247-01" ] }, { "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": 2, "year": 1990, "pin_cites": [ { "page": "649", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521334 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0131-01" ] }, { "cite": "495 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "354-55" } ], "opinion_index": 0 }, { "cite": "347 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551073 ], "year": 1998, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0560-01" ] }, { "cite": "378 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "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", "year": 1988, "pin_cites": [ { "page": "86" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525523 ], "year": 1988, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0585-01" ] }, { "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": 4, "year": 1994, "pin_cites": [ { "page": "468" }, { "page": "470" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522201 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/113/0354-01" ] }, { "cite": "430 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "holding that an action under a UIM policy is \"actually one for the tort allegedly committed by the [underinsured] motorist\"" } ], "opinion_index": 0 }, { "cite": "334 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531661 ], "year": 1993, "pin_cites": [ { "parenthetical": "holding that an action under a UIM policy is \"actually one for the tort allegedly committed by the [underinsured] motorist\"" } ], "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" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0419-01" ] }, { "cite": "349 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "stating the UIM carrier \"assumed... the liability of the uninsured motorist for damages which the plaintiff is legally entitled to recover from the uninsured motorist\"" } ], "opinion_index": 0 }, { "cite": "318 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736197, 4739208, 4740563, 4736150, 4733690 ], "year": 1986, "pin_cites": [ { "parenthetical": "stating the UIM carrier \"assumed... the liability of the uninsured motorist for damages which the plaintiff is legally entitled to recover from the uninsured motorist\"" } ], "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", "year": 1986, "pin_cites": [ { "page": "569", "parenthetical": "stating the UIM carrier \"assumed... the liability of the uninsured motorist for damages which the plaintiff is legally entitled to recover from the uninsured motorist\"" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524649 ], "year": 1986, "pin_cites": [ { "page": "515", "parenthetical": "stating the UIM carrier \"assumed... the liability of the uninsured motorist for damages which the plaintiff is legally entitled to recover from the uninsured motorist\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0512-01" ] }, { "cite": "472 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "216" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911983 ], "year": 1996, "pin_cites": [ { "page": "128-29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0124-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 0 }, { "cite": "499 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "768" }, { "page": "767", "parenthetical": "noting that McMillian overruled Ohio Casualty \"in part\"" } ], "opinion_index": 0 }, { "cite": "348 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659755 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "253" }, { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0247-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 23, "pin_cites": [ { "page": "(j)" }, { "page": "(a)", "parenthetical": "emphasis added" }, { "page": "(a)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "360" }, { "page": "359" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(f)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "392 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "651" }, { "page": "651" } ], "opinion_index": 1 }, { "cite": "99 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521334 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "137" }, { "page": "137" } ], "opinion_index": 1, "case_paths": [ "/nc-app/99/0131-01" ] }, { "cite": "495 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "354-55" } ], "opinion_index": 1 }, { "cite": "347 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551073 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "565" }, { "page": "565" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0560-01" ] } ], "analysis": { "cardinality": 852, "char_count": 27069, "ocr_confidence": 0.756, "pagerank": { "raw": 3.781259337954663e-07, "percentile": 0.8965611508624635 }, "sha256": "889dec27fcaff6e1f161597407caa5bdec6dca00598b43d19b7e0a5041e71c28", "simhash": "1:3f43507276bfcd54", "word_count": 4294 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge GREENE concurs in part and dissents in part." ], "parties": [ "NORMAN J. LEVASSEUR, Plaintiff-Appellee v. BILLY JOE LOWERY, Defendant, BEAM ELECTRIC CO., INC., Intervenor-Appellant KEY RISK MANAGEMENT SERVICES INC., Intervenor-Appellant" ], "opinions": [ { "text": "WALKER, Judge.\nPlaintiff, an employee of appellant Beam Electric Co., Inc. (Beam), was injured in an automobile accident in the course of his employment. Defendant Lowery, the negligent third party, was covered by a liability automobile insurance policy in the amount of $25,000.00, issued by State Farm Mutual Automobile Insurance Company (State Farm). At the time of the accident, plaintiff was operating a vehicle owned by Beam which was insured by an underin-sured motorist (UIM) policy from Travelers Insurance Companies (Travelers), with policy limits of $1,000,000.00. Appellant Key Risk Management Services, Inc. (Key Risk) administers Beam\u2019s workers\u2019 compensation claims.\nAs a result of plaintiff\u2019s injuries, Beam paid $92,723.45 in medical expenses, $5,754.93 in rehabilitation expenses, and $92,625.58 in indemnity benefits, for a total workers\u2019 compensation lien of $191,103.96, as it appeared on Form 28B dated 9 December 1998. Plaintiff received $65,000.00 in workers\u2019 compensation benefits for his permanent partial disability ratings from the injuries. Additionally, plaintiff\u2019s attorney was awarded a fee of $16,250.00 from the Industrial Commission (Commission) based on the $65,000.00 benefit payment.\nOn 1 July 1997, plaintiff filed suit against defendant Lowery and unnamed defendant Travelers. Prior to the filing of the lawsuit, State Farm tendered its policy limits of $25,000.00. The $25,000.00 was then advanced by Travelers to protect its subrogation rights under N.C. Gen. Stat. \u00a7 20-279.21(b)(4). Pursuant to N.C. Gen. Stat. \u00a7 97-10.2, Beam gave notice of appearance and notice of lien to the trial court on 17 October 1997. The Commission distributed the $25,000.00 recovery one-third ($8,333.33) to plaintiff, one-third to Beam, and one-third to plaintiff\u2019s counsel for attorney fees.\nOn 11 March 1998, plaintiff moved the case against Travelers to binding arbitration. Plaintiff and Travelers agreed that the arbitrators would not decide:\nthe issue of what amount is recoverable under the UIM policy issued by Travelers because they will not decide any offsets for credits for payment by any liability carrier and any offsets for any credit for payments by the carrier pursuant to any workers\u2019 compensation claim [plaintiff] has made, or the limits of the UIM policy, if any.\nInstead, the issue of damages was limited to \u201cwhat amount is the plaintiff entitled to recover as damages for his personal injuries from Travelers?\u201d The arbitration resulted in an award of $625,000.00 to plaintiff.\nThereafter, Travelers took the position that no UIM proceeds were payable to plaintiff until his workers\u2019 compensation claim was \u201cclosed.\u201d On 29 September 1998, plaintiff moved, in the underlying action (97 CVS 2452), for a judgment on the arbitration award and to extinguish Beam\u2019s workers\u2019 compensation lien.\nOn 29 December 1998, prior to a hearing on plaintiff\u2019s motion, plaintiff and Travelers entered into an agreement whereby Travelers would reduce its payment of the arbitration award by the amount of Beam\u2019s workers\u2019 compensation lien, receive credit for the $25,000.00 recovery from State Farm, and make a net payment of $450,000.00 to plaintiff in full payment of the arbitration award. The parties determined Beam\u2019s lien to be $185,349.03, as opposed to the $191,103.96 appearing on the Form 28B. All the parties, including Beam, stipulated that plaintiff, Travelers and State Farm \u201cresolved all matters and things in dispute between them\u201d through this agreement.\nOn 15 January 1999, the trial court ordered that (1) Beam\u2019s workers\u2019 compensation lien did not attach to the proceeds from plaintiff\u2019s agreement with Travelers; and alternatively, (2) the trial court extinguished the lien in its discretion in the event it was later determined that Beam did have a lien on the plaintiff\u2019s settlement proceeds.\nRecently, in Liberty Mut. Ins. Co. v. Ditillo, 348 N.C. 247, 253, 499 S.E.2d 764, 768 (1998), our Supreme Court specifically declined to decide whether a workers\u2019 compensation carrier has a right under N.C. Gen. Stat. \u00a7 97-10.2 to a lien on uninsured motorist (UM) benefits paid to an employee in a case where the UM coverage limits exceed the amount of workers\u2019 compensation benefits. We are now presented with a case where the UIM benefits paid to an employee exceed the amount of workers\u2019 compensation benefits.\nBeam first argues that the trial court lacked jurisdiction to determine the amount of the workers\u2019 compensation lien and distribute the third party recovery under N.C. Gen. Stat. \u00a7 97-10.2Q).\nTo determine whether the trial court had jurisdiction under N.C. Gen. Stat. \u00a7 97-10.2(j), we first consider whether Travelers is a \u201cthird party\u201d within the meaning of N.C. Gen. Stat. \u00a7 97-10.2. Under the statute, \u201cthird party\u201d is defined as follows:\nThe right to compensation and other benefits . . . shall not be affected by the fact that the injury . . . was caused under circumstances creating a liability in some person other than the employer to pay damages therefor, such person hereinafter being referred to as the \u201cthird party.\u201d\nN.C. Gen. Stat. \u00a7 97-10.2(a) (Cum. Supp. 1998) (emphasis added).\nIn Creed v. R.G. Swaim and Son, Inc., 123 N.C. App. 124, 128-29, 472 S.E.2d 213, 216 (1996), this Court held that, under N.C. Gen. Stat. \u00a7 97-10.2, payments made by the UIM carrier as well as the tort-feasor are from a \u201cthird party,\u201d and that the workers\u2019 compensation carrier \u201chas a lien on the proceeds of plaintiff\u2019s underinsured motorist policy\u201d under the statute.\nHere, the policy states that Travelers will pay all sums the plaintiff is \u201clegally entitled to recover as damages from\u201d the underinsured motorist. This Court has held that an action under a UIM policy is based on the tort of the other motorist and that UIM coverage is a type of liability coverage. See Ensley v. Nationwide Mut. Ins. Co., 80 N.C. App. 512, 515, 342 S.E.2d 567, 569, cert. denied, 318 N.C. 414, 349 S.E.2d 594 (1986) (stating the UIM carrier \u201cassumed... the liability of the uninsured motorist for damages which the plaintiff is legally entitled to recover from the uninsured motorist\u201d). Traveler\u2019s liability to plaintiff, while derivative, exists by reason of defendant Lowery\u2019s negligence. See Baxley v. Nationwide Mutual Ins. Co., 104 N.C. App. 419, 424, 410 S.E.2d 12, 15 (1991), affirmed, 334 N.C. 1, 430 S.E.2d 895 (1993) (holding that an action under a UIM policy is \u201cactually one for the tort allegedly committed by the [underinsured] motorist\u201d) (citations omitted). Therefore, Travelers is a \u201cthird party\u201d in that plaintiff\u2019s injury was \u201ccaused under circumstances creating a liability in some person ... to pay damages therefor.\u201d N.C. Gen. Stat. \u00a7 97-10.2(a).\nN.C. Gen. Stat. \u00a7 97-10.2Q) establishes when the superior court is given jurisdiction. The statute, as in effect at the time of the present case, provides in part:\nNotwithstanding any 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... to determine the subro-gation amount.\nN.C. Gen. Stat. \u00a7 97-10.2(j) (1998). Accordingly, there are two instances whereby the trial court is given jurisdiction: (1) where the judgment is insufficient to compensate the subrogation claim of the workers\u2019 compensation carrier, or (2) where a settlement has been agreed upon by the employee and the third party.\nBeam contends the trial court erred in assuming jurisdiction since the agreement between plaintiff and Travelers was not a valid \u201csettlement\u201d as recognized by the statute, but merely an attempt to circumvent it.\nThe trial court found in part:\n16. The plaintiff, Travelers and the defendant have resolved all issues in dispute among them concerning the payment of the arbitration award, issues of setoff under the Travelers policy for workers\u2019 compensation benefits paid, pre- and post-judgment interest, and all other issues, by way of an Agreement dated December 29, 1998. Said Agreement is part of the record of this case.\n17. The settlement agreement provides that Travelers, pursuant to the language of its policy and recent North Carolina Supreme Court cases interpreting that policy language, is entitled to a setoff or credit for amounts paid to the plaintiff by workers\u2019 compensation....\nThe parties to the agreement do not contest its validity. We agree with the trial court\u2019s findings and conclusion that the settlement agreement reached by the plaintiff and the third party gave the trial court jurisdiction.\nBeam also argues that since plaintiff agreed to invoke the jurisdiction of the Commission for the interim disbursement of the $25,000.00 recovery, the Commission had exclusive jurisdiction. Beam cites Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, disc. review denied, 336 N.C. 602, 447 S.E.2d 385 (1994), for the proposition that once the request for disbursement is submitted to the Commission, the superior court no longer has jurisdiction.\nIn Buckner, the plaintiff-employee, while in the course of his employment, was injured in an automobile accident by a tortfeasor. The employer provided UIM coverage for the employee. The employee, employer, and tortfeasor executed a consent judgment and submitted the matter to the superior court for disbursement. Id. at 356-57, 438 S.E.2d at 468. To give the superior court jurisdiction, N.C. Gen. Stat. \u00a7 97-10.2(j), as in effect at that time, required that the employee-third party settlement be entered when the \u201caction [was] pending on a trial calendar and the pretrial conference with the judge ha[d] been held.\u201d Since there was no evidence that the settlement occurred at such a time, this Court held that the superior court did not have jurisdiction and exclusive jurisdiction was therefore assumed by the Commission. Id. at 360, 438 S.E.2d at 470.\nUnder N.C. Gen. Stat. \u00a7 97-10.2, the \u201cdistribution issue can be decided in some instances by either the Commission or the trial court, with \u2018a different standard for disbursement when the case is before the Superior Court than that for cases before the Industrial Commission.\u2019 \u201d Id. at 359, 438 S.E.2d at 470 (quoting Pollard v. Smith, 90 N.C. App. 585, 588, 369 S.E.2d 84, 86 (1988), reversed on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989)).\nHere, even though the Commission assumed jurisdiction over disbursement of the $25,000.00 recovery, this does not preclude the superior court from properly assuming jurisdiction as a result of the settlement reached between plaintiff and Travelers.\nNext, Beam argues the trial court erred in concluding it did not have a lien on the plaintiff\u2019s settlement with Travelers.\nIn McMillian v. N.C. Farm Bureau Mut. Ins. Co., 347 N.C. 560, 565, 495 S.E.2d 352, 354-55 (1998), our Supreme Court held that UM carriers are entitled under N.C. Gen. Stat. \u00a7 20-279.21(e) to reduce coverage by the amount of workers\u2019 compensation benefits received by the employee. The plaintiff in McMillian filed a declaratory judgment action to determine the coverage available under a UM policy and a policy which provided UM and UIM coverage. The McMillian court held that \u201cUM carriers are entitled to reduce coverage... by the amount of workers\u2019 compensation . . . already received.\u201d Id. In so holding, the McMillian court rejected the analysis of 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), which focused on the entity who provided the UM/UIM policies. See Liberty Mutual, 348 N.C. at 252, 499 S.E.2d at 767 (noting that McMillian overruled Ohio Casualty \u201cin part\u201d).\nHowever, the Ohio Casualty Court also interpreted N.C. Gen. Stat. \u00a7 97-10.2, and stated 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 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 (emphasis added).\nAdditionally, this Court in McMillian, 125 N.C. App. 247, 254, 480 S.E.2d 437, 441 (1997), interpreted N.C. Gen. Stat. \u00a7 97-10.2 such that:\nthe workers\u2019 compensation insurance carrier ... is entitled to be subrogated, upon reimbursement of the employee, to any payment, including UM/UIM motorist insurance proceeds, made to the employee by or on behalf of a third party as a result of the employee\u2019s injury.\nThese constructions of N.C. Gen. Stat. \u00a7 97-10.2 by this Court were not addressed by our Supreme Court in McMillian. Accordingly, pursuant to N.C. Gen. Stat. \u00a7 97-10.2, McMillian, and Ohio Casualty, Beam\u2019s workers\u2019 compensation lien attached to plaintiff\u2019s settlement proceeds from Travelers.\nPlaintiff argues that his UIM benefits have already been reduced by the amount of the lien and to now allow Beam\u2019s lien would result in a double penalty.\nPlaintiff and Travelers reached a settlement as to the amount of UIM proceeds to which plaintiff was entitled. Travelers did not reduce its liability by operation of its policy provisions or the law. Rather, plaintiff\u2019s settlement with Travelers allowed the insurance carrier to reduce the arbitration award by the amount of the employer\u2019s workers\u2019 compensation lien. Since plaintiff and Travelers settled, the issue of whether Beam was entitled to a workers\u2019 compensation lien on the UIM proceeds in addition to Travelers reducing the UIM proceeds by the lien amount is irrelevant. Plaintiff cannot now contend that his private settlement with Travelers operated to extinguish his employer\u2019s workers\u2019 compensation lien.\nNext, Beam contends that the trial court abused its discretion in eliminating the lien. Under N.C. Gen. Stat. \u00a7 97-10.2(j), the \u201cjudge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien . . . ,\u201d However, this Court has held that \u201cthe power given the trial court in N.C. Gen. Stat. \u00a7 97-10.2(j) is not unbridled or unlimited,\u201d rather:\nthe trial court is to make a reasoned choice, a judicial value judgment, which is factually supported. We hold that the trial court, in considering a request for disbursement under subsection (j), must enter an order with findings of fact and conclusions of law sufficient to provide for meaningful appellate review.\nAllen v. Rupard, 100 N.C. App. 490, 495 S.E.2d 330, 333 (1990) (citations omitted).\nThe trial court made findings concerning the extent of plaintiffs injuries. The trial court concluded Beam did not have a lien on plaintiffs settlement but that if Beam were later determined to have a lien, then the trial court, in its discretion, eliminated the lien to prevent an injustice.\nThe findings and conclusions of the trial court do not comport with the requirements set forth in Allen, supra. Once the lien is established and the trial court considers a request for disbursement, it must make a reasoned choice, a judicial value judgment and enter findings and conclusions which can provide for meaningful review on appeal.\nFinally, Beam argues the trial court erred in awarding an unreasonable attorney fee to plaintiff, which was one-third of plaintiffs recovery from Travelers.\nPlaintiff and his attorneys entered a contingent fee agreement which provided that the attorney fee would be one-third of the amount recovered after suit was filed plus costs. N.C. Gen. Stat. \u00a7 97-10.2(f)(l) requires the Commission to disburse monies as prioritized in the statute and provides for the attorney fee \u201cnot [to] exceed one third of the amount obtained or recovered of the third party.\u201d While the trial court is not boundby this subsection, it supports the trial court\u2019s approval of the contingency fee agreement. Accordingly, we find no abuse of discretion in the trial court\u2019s approval of the attorney fee agreement.\nIn sum, Travelers is a \u201cthird party\u201d within the meaning of N.C. Gen. Stat. \u00a7 97-10.2 and the trial court properly assumed jurisdiction of the matter pursuant to N.C. Gen. Stat. \u00a7 97-10.2Q). The trial court did not err in approving the fee agreement between plaintiff and his attorneys. The trial court erred in concluding that Beam did not have a lien on the UIM benefits recovered by plaintiff from Travelers, and we remand this case for further proceedings consistent with this opinion.\nAffirmed in part; reversed in part and remanded.\nJudge TIMMONS-GOODSON concurs.\nJudge GREENE concurs in part and dissents in part.\n. Effective 18 June 1999, N.C. Gen. Stat. \u00a7 97-10.2Q), Session Laws 1999-194, s. 1, among other changes, substituted \u201cby the employee in an action against a third party\u201d for \u201cwhich is insufficient to compensate the subrogation claim of the Workers\u2019 Compensation Insurance Carrier.\u201d\n. The 1999 amendment to N.C. Gen. Stat. \u00a7 20-279.21(e), entitled \u201cAn act to clarify that liability, uninsured, and underinsured coverage is not reduced by receipt of subrogated Workers\u2019 Compensation benefits,\u201d specifically references the workers\u2019 compensation lien of N.C. Gen. Stat. \u00a7 97-10.2 and states in part that the UIM carrier \u201cshall insure that portion of a loss uncompensated by any workers\u2019 compensation law and the amount of an employer\u2019s lien determined pursuant to G.S. 97-10.2(h) or (j).\u201d N.C. Gen. Stat. \u00a7 20-279.21(e) (1999). Under the rewritten G.S. \u00a7 20-279.21(e), which presumes that a workers\u2019 compensation lien attaches to UM/UIM proceeds, the potential for a double recovery by the insured is eliminated. However, the rewritten \u00a7 20-279.21(e) does not establish the priority in which the amounts are to be satisfied in the event the policy limits are insufficient to cover both the insured\u2019s loss and the employer\u2019s lien.\n. Effective 18 June 1999, and applicable to judgments or settlements entered against third parties on or after that date pursuant to N.C. Gen. Stat. \u00a7 97-10.2, subsection 0) now requires the judge to:\nconsider the anticipated amount of prospective compensation the employer or workers\u2019 compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer\u2019s lien.\nN.C. Gen. Stat. \u00a7 97-10.2Q) (1999).", "type": "majority", "author": "WALKER, Judge." }, { "text": "Judge Gkeene\nconcurring in part and dissenting in part.\nI do not agree Beam\u2019s workers\u2019 compensation lien attached to plaintiff\u2019s settlement proceeds from Travelers.\nThis case presents for the first time the issue of whether a workers\u2019 compensation carrier/employer is entitled to a lien on the employee/plaintiff\u2019s personal injury proceeds received from a UIM carrier, when the UIM carrier has been given a credit in the amount of the payments made by the workers\u2019 compensation carrier/employer to the insured/employee. Our Supreme Court has held a UIM carrier is entitled to reduce its UIM coverage to its insured by the amount of workers\u2019 compensation the insured/employee has already received. McMillian v. N.C. Farm Bureau Mut. Ins. Co., 347 N.C. 560, 565, 495 S.E.2d 352, 354-55 (1998). In so holding, the McMillian court overruled this Court\u2019s holding in Ohio Casualty Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647 (1990) that the UIM carrier was not entitled to a credit for the workers\u2019 compensation payments made to the insured/employee. McMillan, 347 N.C. at 565, 495 S.E.2d at 355. The McMillian court did not address the question of whether the workers\u2019 compensation carrier/employer was also entitled to a lien on the UIM proceeds received by the insured/employee. Accordingly, left undisturbed was that portion of the Ohio Casualty opinion that the workers\u2019 compensation carrier/employer was entitled to a lien on the UIM proceeds received by the insured/employee. Ohio Casualty, 99 N.C. App. at 137, 392 S.E.2d at 651.\nBeam, plaintiffs employer in this case, argues and the majority agrees McMillian and Ohio Casualty, when read together, hold the UIM carrier is entitled to a credit for workers\u2019 compensation payments made and the workers\u2019 compensation carrier/employer is entitled to a lien on the proceeds received by the insured/employee. I disagree.\nThat portion of the Ohio Casualty opinion relating to the workers\u2019 compensation lien must be read in the context of its holding that the UIM carrier was not entitled to a credit for payments made by the workers\u2019 compensation carrier/employer. To allow both a credit to the UIM carrier and a lien to the workers\u2019 compensation carrier/employer would penalize the insured/employee and thus deny him the full compensation for his injuries to which he is entitled under the law. Therefore, McMillian must be read, in the context of a case where the UIM carrier has previously been given a credit for the workers\u2019 compensation payments, to overrule that portion of Ohio Casualty providing for a workers\u2019 compensation lien on the UIM proceeds received by the insured/employee. Accordingly, because Travelers received a credit for the workers\u2019 compensation payments made by Beam in its payment to plaintiff, Beam was not entitled to a lien on the proceeds received by plaintiff from Travelers.\nAs I fully concur with the majority on the other issues addressed in its opinion, I would affirm the order of the trial court in all respects.\n. The rationale for the Ohio Casualty holding is to prevent the insured/employee from recovering twice for the same injury: once from the workers\u2019 compensation carrier and once from the UIM carrier. 99 N.C. App. at 137, 392 S.E.2d at 651.\n. For example: employee is injured in the course and scope of his employment by a non-employee underinsured tortfeasor. Employee collects $100,000.00 from his workers\u2019 compensation carrier/employer and obtains a $300,000.00 judgment against his UIM carrier. If we allow both the UIM credit and the workers\u2019 compensation lien, the insured/employee receives a net of $200,000.00. Utilizing these principles, employee would be better served to refuse any workers\u2019 compensation benefits and pursue the UIM carrier, thus, netting him a total of $300,000.00.\n. Even if McMillian cannot be read in this manner, so as to contravene the workers\u2019 compensation lien provided for in section 97-10.2(f)(l)c, the trial court in its discretion may choose to eliminate the hen when the UIM carrier has been given credit for the workers\u2019 compensation payments. N.C.G.S. \u00a7 97-10.2Q) (1999). I disagree with the conclusion of the majority that the trial court\u2019s decision to waive the lien must include any findings of fact beyond the finding that the UIM carrier had been given a credit for the workers\u2019 compensation payments. Thus, as an alternative basis, I would affirm the trial court\u2019s alternative basis for its decision to eliminate Beam\u2019s workers\u2019 compensation hen.\n. I reject the suggestion of the majority that plaintiff somehow waived his right to argue Beam is not entitled to a lien because he agreed, in settlement, to reduce the arbitration award by the amount of the workers\u2019 compensation payments. At the time of this settlement, our case law was unequivocal in holding the UIM carrier, Travelers, was entitled to a credit for any workers\u2019 compensation benefits paid to the insured/employee. Plaintiff, thus, acted in accordance with the well-settled law and cannot now be penalized for that action.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge Gkeene" } ], "attorneys": [ "Arthurs & Foltz, by Nancy E. Foltz and Douglas P. Arthurs, for plaintiff-appellee.", "Womble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by Clayton M. Custer and Laura M. Wolfe, for intervenors-appellants." ], "corrections": "", "head_matter": "NORMAN J. LEVASSEUR, Plaintiff-Appellee v. BILLY JOE LOWERY, Defendant, BEAM ELECTRIC CO., INC., Intervenor-Appellant KEY RISK MANAGEMENT SERVICES INC., Intervenor-Appellant\nNo. COA99-598\n(Filed 1 August 2000)\n1. Jurisdiction\u2014 automobile accident \u2014 workers\u2019 compensation lien \u2014 underinsured motorist coverage \u2014 subrogation\nThe trial court did not err in assuming jurisdiction under N.C.G.S. \u00a7 97-10.2(j) to determine the amount of an employer\u2019s workers\u2019 compensation lien in an action where plaintiff-employee was injured in an automobile accident in the course of his employment while driving a company vehicle, because: (1) the unnamed defendant underinsured motorist carrier is a third party based on plaintiff\u2019s injury being caused under circumstances creating a liability in some person to pay damages therefor, N.C.G.S. \u00a7 97-10.2(a); (2) the trial judge is given jurisdiction where the judgment is insufficient to compensate the subrogation claim of the workers\u2019 compensation carrier or where a settlement has been agreed upon by the employee and the third party; (3) the settlement agreement reached by plaintiff and the third party in the instant case gave the trial court jurisdiction; and (4) even though the Industrial Commission assumed jurisdiction over disbursement of the $25,000 recovery, the trial court is not precluded from assuming jurisdiction as a result of the settlement reached between plaintiff and the third party.\n2. Insurance\u2014 automobile \u2014 underinsured motorist policy\u2014 subrogation \u2014 workers\u2019 compensation lien\nThe trial court erred by concluding intervenor-employer did not have a lien on plaintiff-employee\u2019s settlement with the employer\u2019s underinsured motorist (UIM) carrier in an action where plaintiff-employee was injured in an automobile accident in the course of his employment while driving a company vehicle, because: (1) the settlement merely allowed the insurance carrier to reduce the arbitration award by the amount of the employer\u2019s workers\u2019 compensation lien; (2) the issue of whether the employer was entitled to a workers\u2019 compensation lien on the UIM proceeds in addition to the insurance carrier reducing the UIM proceeds by the lien amount was irrelevant to the settlement; and (3) once the lien was established, the trial court abused its discretion by stating it was eliminating the lien in order to prevent an injustice, based on the trial court\u2019s failure to make a reasoned choice and enter findings and conclusions which could provide for meaningful review on appeal as required by N.C.G.S. \u00a7 97-10.2Q).\n3. Costs\u2014 attorney fees \u2014 contingent fee agreement\nThe trial court did not abuse its discretion by approving the contingent fee agreement between plaintiff and his attorneys for one-third of plaintiff\u2019s recovery in an action where plaintiff-employee was injured in an automobile accident in the course of his employment while driving a company vehicle, because N.C.G.S. \u00a7 97-10.2(f)(l) provides that the attorney fees can be up to one-third of the amount obtained or recovered.\nJudge Greene concurring in part and dissenting in part.\nAppeal by intervenors from order entered 16 January 1999 by Judge Jesse B. Caldwell, III, in Gaston County Superior Court. Heard in the Court of Appeals 22 February 2000.\nArthurs & Foltz, by Nancy E. Foltz and Douglas P. Arthurs, for plaintiff-appellee.\nWomble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by Clayton M. Custer and Laura M. Wolfe, for intervenors-appellants." }, "file_name": "0235-01", "first_page_order": 267, "last_page_order": 278 }