{ "id": 8412707, "name": "SANDRA O. WILKERSON, Ancillary Administratrix of the ESTATE OF JOHNNIE ALAN WILKERSON and SANDRA O. WILKERSON, Individually, Plaintiffs v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant", "name_abbreviation": "Wilkerson v. Norfolk Southern Railway Co.", "decision_date": "2004-12-21", "docket_number": "No. COA04-7", "first_page": "607", "last_page": "612", "citations": [ { "type": "official", "cite": "167 N.C. App. 607" } ], "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": "586 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "160 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958518 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/160/0697-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "593 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "593 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "454" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917729 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/163/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 16, "pin_cites": [ { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "351" }, { "page": "(j)" }, { "page": "352" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "353" }, { "page": "(h)" }, { "page": "(h)" }, { "parenthetical": "emphasis added" }, { "page": "(g)" }, { "page": "(j)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 554, "char_count": 11944, "ocr_confidence": 0.724, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20357654056278957 }, "sha256": "c627b10006126e1744a19530a041666e783eeaea09408a4d6b26ecc007dde08a", "simhash": "1:11031176531c6a4e", "word_count": 1915 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and McCULLOUGH concur." ], "parties": [ "SANDRA O. WILKERSON, Ancillary Administratrix of the ESTATE OF JOHNNIE ALAN WILKERSON and SANDRA O. WILKERSON, Individually, Plaintiffs v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nThis appeal is by the unnamed defendant insurance carrier alleging that the Durham County Superior Court did not have jurisdiction to enter an order eliminating the carrier\u2019s workers\u2019 compensation lien; erred in determining that a settlement had been reached in the underlying case; and lacked jurisdiction to order that workers\u2019 compensation payments continue until exhausted. For the reasons stated herein, we vacate the order of the trial court.\nThis appeal is rooted in the fatal accident of plaintiff\u2019s husband. Johnnie Alan Wilkerson, decedent, was transporting cement for his employer, Giant Cement of South Boston, Virginia (Giant), when he was struck by an Amtrak train while crossing the tracks on Plum Street in Durham, North Carolina. Since decedent was a resident of Virginia, and acting within the scope of his employment at the time of the accident, his wife, the administratrix of his estate, filed for workers\u2019 compensation benefits under the Workers\u2019 Compensation Act of the Commonwealth of Virginia. She also filed suit in Durham County Superior Court against Norfolk Southern Railway Company (Norfolk) alleging that the company was negligent in maintaining the rail crossing at Plum Street.\nAs the workers\u2019 compensation insurance carrier for Giant, Liberty Mutual (Liberty) began making payments consistent with Virginia\u2019s workers\u2019 compensation laws. Pursuant to Virginia statutory and case law entitling a carrier to reimbursement for payments, Liberty filed and maintained a lien against any proceeds from a recovery in plaintiff\u2019s action against Norfolk. Plaintiff tentatively accepted a mediated settlement from Norfolk for $400,000.00 subject to a satisfactory resolution of Liberty\u2019s lien on those funds. Essentially plaintiff wanted to maximize the amount of recovery from the settlement flowing directly to her and have as few dollars as possible paid to Liberty via the reimbursement lien. As such, plaintiff filed a motion in Durham County Superior Court to have the lien either reduced or eliminated. The trial court determined that it had proper jurisdiction to handle the matter and entered an order eliminating the lien. It is from this order that Liberty appeals.\nLiberty argues that the \u201csettlement\u201d entered into by Norfolk and plaintiff is not final and does not constitute a settlement for the purposes of N.C. Gen. Stat. \u00a7 97-10.2(j). We agree, and therefore vacate the trial court\u2019s order eliminating the lien.\nN.C. Gen. Stat. \u00a7 97-10.2(j) (2003) provides in part that:\nNotwithstanding any other subsection in this section, ... 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 of the county in which the cause of action arose, where the injured employee resides or the presiding judge before whom the cause of action is pending, to determine the subrogation amount. After notice to the employer and the insurance carrier, after an opportunity to be heard by all interested parties, and with or without the consent of the employer, the judge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien, whether based on accrued or prospective workers\u2019 compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer.\nId. Liberty cites Ales v. T.A. Loving Co., 163 N.C. App. 350, 593 S.E.2d 453 (2004), in support of its position. The Ales court construed N.C. Gen. Stat. \u00a7 97-10.2(j) such that reaching a final settlement between a third party and an employee is a jurisdictional prerequisite to the judge being able to determine whether an employer\u2019s lien should be modified or eliminated. Id.\nIn Ales, the third party and employee had reached a settlement agreement, \u201ccontingent upon a waiver of the workers\u2019 compensation lien.\u201d Id. at 351, 593 S.E.2d at 454. The employee then made a motion for elimination of the lien that was granted by the trial court. On appeal, the employer argued that the settlement was not final and deprived the trial court of jurisdiction to eliminate the lien. This Court framed the issue as: \u201cwhether N.C. Gen. Stat. \u00a7 97-10.2(j) provides the superior court with jurisdiction to adjust the amount of a worker\u2019s compensation lien when the terms of the settlement agreement are contingent upon such adjustment.\u201d Id. at 352, 593 S.E.2d 454-55. The Court went on to hold that it does not, since under contract law, the adjustment would be a condition precedent to the settlement.\nWe interpret N.C. Gen. Stat. \u00a7 97-10.2(j) as permitting the superior court to adjust the amount of a subrogation lien if the agreement between the parties has been finalized so that only performance of the agreement is necessary to bind the parties. An agreement containing a condition precedent which must be fulfilled before either party is bound to the contract terms does not give the trial court jurisdiction under N.C. Gen. Stat. \u00a7 97-10.2(j).\nId. at 353, 593 S.E.2d at 455.\nAlthough plaintiff maintains that Ales and the present case are distinguishable, we cannot agree. Plaintiff and Norfolk did reach a settlement, but it too was not final. Plaintiff\u2019s motion to the superior court requesting that it extinguish the lien noted, \u201c[a]t the mediation, Plaintiff tentatively agreed to a settlement of $400,000, expressly dependent upon an agreeable solution to the Workers\u2019 Compensation subrogation.\u201d Plaintiff also orally argued to the superior court that \u201c[a]fter a day of mediation we were able to resolve the case tentatively, subject to a resolution of \u2014 satisfactory resolution of the workers\u2019 compensation lien.\u201d In its order, the superior court determined as a finding of fact that \u201c[t]his settlement was made subject to resolution of the workers\u2019 compensation lien that the carrier has asserted,\u201d and the concluded that \u201cplaintiff and the Third Party settled this case at the above-mentioned mediation for the sum of $400,000.00 .... subject to the resolution of the claim of subrogation and lien by the carrier.\u201d All of this language suggests that had the judge not extinguished the lien, there would be no settlement for $400,000.00 between plaintiff and Norfolk, and the parties would return to the negotiating table or trial; hence, a condition precedent.\nAles and this case are indistinguishable, and as such, Ales controls our decision here. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d). This Court\u2019s holding on the basis of Ales, however, perhaps presents an unrecognized conflict.\nOn the one hand, as plaintiff argues, it is common practice for employees and third parties to come to tentative settlement agreements in which the only contingency is that of satisfactory resolution of the workers\u2019 compensation lien. Yet, it is precisely this contingency that Ales proscribes. Parties must be bound by the superior court\u2019s .decision, so long as it is not arbitrary. See Wood v. Weldon, 160 N.C. App. 697, 586 S.E.2d 801 (2003) (employer\u2019s insurance carrier, employee, and third party bound by an employee \u2014 third party settlement that placed a portion of the proceeds in escrow to be paid either to carrier or employee according to a subsequent superior court\u2019s modification or elimination of the workers\u2019 compensation lien). Allowing otherwise would permit employees to compromise judicial efficiency by proceeding to discount a superior court\u2019s decision if it goes against them and renegotiating a settlement that provides the same effect that they originally sought.\nOn the other hand, our decision may have an unintended statutory effect. If, as the Ales court determined, a final settlement is a prerequisite to petitioning a judge under subsection (j), .then the requirements of N.C. Gen. Stat. \u00a7 97-10.2(h) still should govern the settlement. N.C. Gen. Stat. \u00a7 97-10.2(h) (2003) reads, in pertinent part:\n[i]n any . . . 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, whether paid in settlement, . . . and such lien may be enforced against any person receiving such funds. Neither the employee or his personal representative nor the employer shall make any settlement with or accept any payment from the third party without the written consent of the other and no release to or agreement with the third party shall be valid or enforceable for any purpose unless both employer and employee or his personal representative join therein; provided, that this sentence shall not apply:\n(2) If either party follows the provisions of subsection (j) of this section.\nId. (emphasis added). Section 97-10.2(h) is the statutory authority for the lien. And, it is clear that no release or settlement is binding unless the employee, the employer, and the third party all consent. So by its very nature, subsection (h) prevents a settlement from occurring without the consent of everyone involved. The only way to settle a claim without the consent of all the parties is to proceed under subsection (j), which with the Ales decision is inapplicable absent a final settlement before invoking the provision.\nInterpreting the Ales decision, along with subsection (h), seems to render litigants unable to get to (j) without a final settlement and unable to settle without the consent of all parties. It is clear from subsection (j) that the legislature did not intend this cause and effect since subsection Q) makes the consent of the employer (and hence the carrier, whose rights are subrogated from the employer, see N.C. Gen. Stat. \u00a7 97-10.2(g)) irrelevant to a decision by the judge to modify a lien that arises from a settlement. N.C. Gen. Stat. \u00a7 97-10.2(j) (2003).\nThus, making \u201csettlement\u201d a jurisdictional issue and determining that a settlement must leave nothing to chance, the Ales decision has possibly added an unintended complication to subsection (j). Nonetheless, this panel of the Court is bound by our previous panel, and we accordingly vacate the superior court\u2019s order eliminating the workers\u2019 compensation lien. As such, we do not reach Liberty\u2019s other assignments of error.\nVacated and remanded.\nJudges McGEE and McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "The Law Offices of William Frank Maready, P.L.L.C., by William F. Maready and George D. Humphrey, for plaintiff-appellee Sandra O. Wilkerson, et. al.", "Millberg, Gordon & Stewart, P.L.L.C., by John Millberg, for defendant Norfolk Southern Railway Co.", "Cranfill, Sumner & Hartzog, L.L.P, by Edward C. LeCarpentier, III and F. Marshall Wall, for unnamed defendant-appellant workers\u2019 compensation carrier Liberty Mutual Insurance Co." ], "corrections": "", "head_matter": "SANDRA O. WILKERSON, Ancillary Administratrix of the ESTATE OF JOHNNIE ALAN WILKERSON and SANDRA O. WILKERSON, Individually, Plaintiffs v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant\nNo. COA04-7\n(Filed 21 December 2004)\nWorkers\u2019 Compensation\u2014 elimination of lien \u2014 settlement not final\nThe superior court\u2019s order eliminating unnamed defendant insurance carrier\u2019s workers\u2019 compensation lien is vacated, because: (1) the mediated settlement entered into by defendant employer and plaintiff that was subject to a satisfactory resolution of the lien on those funds was not final and does not constitute a settlement for the purposes of N.C.G.S. \u00a7 97-10.2Q); and (2) the superior court does not have jurisdiction to adjust the amount of the lien when the terms of the settlement agreement are contingent upon such adjustment.\nAppeal by Unnamed Party from an order entered 15 April 2003 by Judge J.B. Allen, Jr. in Durham County Superior Court. Heard in the Court of Appeals 22 September 2004.\nThe Law Offices of William Frank Maready, P.L.L.C., by William F. Maready and George D. Humphrey, for plaintiff-appellee Sandra O. Wilkerson, et. al.\nMillberg, Gordon & Stewart, P.L.L.C., by John Millberg, for defendant Norfolk Southern Railway Co.\nCranfill, Sumner & Hartzog, L.L.P, by Edward C. LeCarpentier, III and F. Marshall Wall, for unnamed defendant-appellant workers\u2019 compensation carrier Liberty Mutual Insurance Co." }, "file_name": "0607-01", "first_page_order": 637, "last_page_order": 642 }