{
  "id": 8525523,
  "name": "TEDDY GLENN POLLARD v. EUGENE PADEN SMITH, and EUGENE PADEN SMITH, Administrator of the Estate of Margaret Elizabeth Smith",
  "name_abbreviation": "Pollard v. Smith",
  "decision_date": "1988-06-21",
  "docket_number": "No. 873SC788",
  "first_page": "585",
  "last_page": "589",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    {
      "cite": "N.C. Gen. Stat. \u00a7 97-10.2",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 2,
      "pin_cites": [
        {
          "page": "(j)"
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  "last_updated": "2023-07-14T21:55:12.261630+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Parker and Greene concur."
    ],
    "parties": [
      "TEDDY GLENN POLLARD v. EUGENE PADEN SMITH, and EUGENE PADEN SMITH, Administrator of the Estate of Margaret Elizabeth Smith"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nIn March of 1985, the plaintiff, a highway patrolman employed by the North Carolina Department of Crime Control and Public Safety (the Department), was injured in an automobile accident in which Margaret Elizabeth Smith was killed. The Department paid approximately $17,000.00 for lost time and medical expenses.\nIn April of 1985, plaintiff sued the defendant administrator of the estate of Margaret Smith, alleging that the negligence of Margaret Smith was the proximate cause of the injuries suffered by plaintiff in the collision. In his answer, defendant denied negligence and counterclaimed. In September of 1986, the Department notified plaintiffs counsel of the Department\u2019s subrogation interest for the $17,000.00 paid in benefits. In May of 1987, plaintiffs case was calendared for trial and counsel for plaintiff and defendant executed an Order on Pre-Trial Conference. Shortly thereafter, on or about 18 May 1987, plaintiff petitioned the court for disbursement of settlement funds pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j), notifying the court in said petition that plaintiff and defendant had agreed to settle plaintiffs action by defendant\u2019s paying to plaintiff $25,000.00. On 18 May 1987, after a hearing, the trial court entered an order disbursing the entire $25,000.00 to plaintiff, giving the Department nothing on its subrogation interest. The Department did not receive notice of the hearing and was not present. The Department appealed.\nThis case is controlled by N.C. Gen. Stat. \u00a7 97-10.2, the section of the Workers\u2019 Compensation Act which sets forth the rights and interests of the employee, the employer, and the employer\u2019s insurance carrier, if any, when there is a cause of action for damages against a third party. The Department contends that distribution of the settlement proceeds in the case below is governed by \u00a7 9740.2(f) which sets the order of priority for disbursement by the Industrial Commission under certain conditions:\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.\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 \u00a7 90 of this Chapter [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 treatment 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.\nIf the trial court below had followed the order of priority set forth in \u00a7 9740.2(f), the Department would have been compensated for the benefits it paid to plaintiff.\nPlaintiff contends that the trial court was correct in not following the priority order in subsection (f). Plaintiff contends the controlling statute is \u00a7 97-10.2(j), which reads:\n(j) 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 when said action is pending on a trial calendar and the pretrial conference with the judge has been held, either party may apply to the resident superior court judge of the county in which the cause of action arose or the presiding judge before whom the cause of action is pending, for determination as to the amount to be paid to each by such third party tort-feasor. If the matter is pending in the federal district court such determination may be made by a federal district court judge of that division.\nPlaintiff contends in his brief that subsection (j) gives the trial judge \u201cunbridled discretion to order the distribution of settlement proceeds as he deems equitable, notwithstanding the provisions of subsection (f).\u201d If subsection (j) is not read that way, plaintiff argues, then it would serve absolutely no purpose. We agree with plaintiffs contention and affirm the trial court\u2019s order.\nSubsection (j) is clear and unambiguous, and must be given effect. Judicial interpretation of a statute is inappropriate when the Legislature has made clear its intent. Pipeline Co. v. Clayton, Comr. of Revenue, 275 N.C. 215, 226, 166 S.E. 2d 671, 679 (1969). The section clearly provides for a different standard for disbursement when the case is before the Superior Court than that for cases before the Industrial Commission. When the General Assembly added subsection (j), it made no reference to subsection (f).\nWhen the General Assembly amends an existing statute, as opposed to merely clarifying existing law, a presumption arises that the Legislature intended to change existing law by creating or taking away rights or duties. Childers v. Parker\u2019s, Inc., 274 N.C. 256, 260, 162 S.E. 2d 481, 483 (1968).\nWe realize that subsection (j) allows plaintiff a double recovery at the expense of the employer or carrier, in the discretion of the Superior Court judge. Nonetheless, since the language is clear and unambiguous, we must hold that the Legislature intended this possible result.\nThe Department also contends that it was error for the trial court to conduct the hearing without giving notice and an opportunity to be heard to the Department. We find no merit to this argument.\nSubsection (j) makes no provision for notice to the employer or the insurance carrier. If the General Assembly had intended for the employer to receive notice of the hearing, it could have made provisions for it. For example, in subsection (c), the Legislature preserved the right of the employer to proceed against the third party when the employee has not done so. Subsection (d) preserves the right of the employer to pursue the action when the employee is uncooperative. Subsection (e) gives the employer the right to appear fully in the cause if the third party alleges joint and concurrent negligence of the employer. Subsection (j) makes no such provision, and we must read the omission as being intentional.\nThe order of the trial court is\nAffirmed.\nJudges Parker and Greene concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Victor H. E. Morgan, Jr., for appellant.",
      "Marvin Blount, Jr., and Albert Charles Ellis for plaintiff ap-pellee."
    ],
    "corrections": "",
    "head_matter": "TEDDY GLENN POLLARD v. EUGENE PADEN SMITH, and EUGENE PADEN SMITH, Administrator of the Estate of Margaret Elizabeth Smith\nNo. 873SC788\n(Filed 21 June 1988)\nSubrogation \u00a7 1; Master and Servant \u00a7 89.4\u2014 injury to highway patrolman \u2014 settlement with third party \u2014 distribution of settlement proceeds\nIn an action in which a highway patrolman was injured and received $17,000 from the Department of Crime Control and Public Safety for lost time and medical expenses, the trial court did not err by disbursing the entire $25,000 settlement between the patrolman and defendant to the patrolman and giving the Department nothing on its subrogation interest. N.C.G.S. \u00a7 97-10.2(j) clearly provides for a different standard of disbursement for cases before the Superior Court than for cases before the Industrial Commission and gives the trial judge unbridled discretion to order the distribution of settlement proceeds as he deems equitable, notwithstanding the provisions of N.C.G.S. \u00a7 97-10.2(f). Furthermore, N.C.G.S. \u00a7 97-10.2(j) makes no provision for notice to the employer or the insurance carrier, and there was no error in conducting the hearing on disbursement of proceeds without giving notice and an opportunity to be heard to the Department.\nAppeal by North Carolina Department of Crime Control and Public Safety from Phillips, Judge. Order entered 18 May 1987 in Superior Court, Carteret County. Heard in the Court of Appeals 7 January 1988.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Victor H. E. Morgan, Jr., for appellant.\nMarvin Blount, Jr., and Albert Charles Ellis for plaintiff ap-pellee."
  },
  "file_name": "0585-01",
  "first_page_order": 615,
  "last_page_order": 619
}
