{ "id": 551293, "name": "CHARLES LYNWOOD JOHNSON v. SOUTHERN INDUSTRIAL CONSTRUCTORS, INC.", "name_abbreviation": "Johnson v. Southern Industrial Constructors, Inc.", "decision_date": "1998-02-06", "docket_number": "No. 282PA97", "first_page": "530", "last_page": "540", "citations": [ { "type": "official", "cite": "347 N.C. 530" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "484 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "126 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708887 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/126/0103-01" ] }, { "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", "year": 1981, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526858 ], "year": 1981, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0124-01" ] }, { "cite": "169 S.E. 419", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "204 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623764 ], "year": 1933, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc/204/0668-01" ] }, { "cite": "146 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "266 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561051 ], "year": 1966, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0419-01" ] }, { "cite": "484 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139569 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0084-01" ] }, { "cite": "129 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559143 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0038-01" ] }, { "cite": "172 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561448 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0371-01" ] }, { "cite": "154 S.E. 69", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "199 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595736 ], "year": 1930, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0154-01" ] }, { "cite": "293 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "143", "parenthetical": "quoting Rice v. Denny Roll & Panel Co., 199 N.C. 154, 157, 154 S.E. 69, 70 (1930)" } ], "opinion_index": 0 }, { "cite": "306 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568216 ], "year": 1982, "pin_cites": [ { "page": "278", "parenthetical": "quoting Rice v. Denny Roll & Panel Co., 199 N.C. 154, 157, 154 S.E. 69, 70 (1930)" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0275-01" ] }, { "cite": "58 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "231 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631040 ], "year": 1950, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0551-01" ] }, { "cite": "264 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "101", "parenthetical": "quoting Montague Bros. v. W.C. Shepherd Co., 231 N.C. 551, 556, 58 S.E.2d 118, 122 (1950)" } ], "opinion_index": 0 }, { "cite": "299 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575832 ], "year": 1980, "pin_cites": [ { "page": "726", "parenthetical": "quoting Montague Bros. v. W.C. Shepherd Co., 231 N.C. 551, 556, 58 S.E.2d 118, 122 (1950)" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0723-01" ] }, { "cite": "378 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "773" }, { "page": "772" } ], "opinion_index": 0 }, { "cite": "324 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485437 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "426" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0424-01" ] }, { "cite": "474 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1996, "pin_cites": [ { "page": "326" }, { "page": "409" }, { "page": "327" }, { "page": "410" }, { "page": "327" } ], "opinion_index": 0 }, { "cite": "344 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867649 ], "year": 1996, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0403-01" ] }, { "cite": "484 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708887 ], "year": 1997, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0103-01" ] }, { "cite": "474 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 1 }, { "cite": "344 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867649 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/nc/344/0403-01" ] } ], "analysis": { "cardinality": 900, "char_count": 24964, "ocr_confidence": 0.74, "pagerank": { "raw": 1.591487891220455e-07, "percentile": 0.6821540560858954 }, "sha256": "d01491778d182eb67ec3b3d1d71aac4ec37287f4c22a69ea822901bc4b3e1e12", "simhash": "1:be2fe16e7e5ecd56", "word_count": 3955 }, "last_updated": "2023-07-14T20:32:58.211595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Webb joins in this dissenting opinion." ], "parties": [ "CHARLES LYNWOOD JOHNSON v. SOUTHERN INDUSTRIAL CONSTRUCTORS, INC." ], "opinions": [ { "text": "LAKE, Justice.\nThis is a workers\u2019 compensation case presenting the question of whether a superior court may assert its jurisdiction over the jurisdiction of the Industrial Commission, pursuant to the provisions of N.C.G.S. \u00a7 97-10.2(j), by adding assumed future workers\u2019 compensation benefits to those currently paid by the employer, to establish that an employee\u2019s recovery from a third-party tort-feasor was insufficient to compensate the employer\u2019s subrogation lien, and thus allow the trial court to determine the amount and distribution of such lien. The Court of Appeals held that the trial court was correct in including assumed future benefits in determining the insufficiency of the third-party judgment to compensate the subrogation lien, and thus the trial court by this methodology had jurisdiction and the authority to set the amount of the employer\u2019s subrogation lien -under this statutory provision. We hold that the trial court may not by this means assert its jurisdiction over the jurisdiction of the Industrial Commission, and accordingly, we reverse the Court of Appeals.\nOn 17 October 1988, the plaintiff, an employee of Siemens Energy & Automation, Inc. (Siemens), suffered a herniated disk in his back when struck by a falling jib crane in the course of his employment. Siemens denied negligence on its part, but admitted the compensability of plaintiff\u2019s injury under the North Carolina Workers\u2019 Compensation Act, and through its insurance carrier, Zurich-American Insurance Company (Zurich), began providing compensation for plaintiff\u2019s medical expenses and temporary total disability benefits, pursuant to Commission approval, in the amount of $256.00 per week.\nOn 7 August 1991, plaintiff filed suit against third-party tortfeasor, Southern Industrial Constructors, Inc., the defendant, alleging his injuries were proximately caused by the negligence of one of defendant\u2019s employees. Plaintiff prevailed at trial, and pursuant to jury verdict, judgment was entered against defendant in the amount of $219,052.20, plus interest and court costs in the amounts of $55,405.12 and $3,538.28, respectively.\nOn 22 December 1994, plaintiff filed a motion requesting that the trial court determine the amount of the subrogation lien filed by Siemens and Zurich pursuant to N.C.G.S. \u00a7 97-10.2Q'). On 4 January 1995, Siemens and Zurich requested distribution of the third-party recovery by order of the Industrial Commission pursuant to N.C.G.S. \u00a7 97-10.2(f)(l). On 3 March 1995, pursuant to plaintiff\u2019s motion, the trial court, following a hearing, entered an order including, in part, the following findings of fact:\n4. Zurich-American has asserted its statutory lien during the course of the third-party negligence action; the lien includes both medical expenses and indemnity payments. The lien totaled $121,853.83 on January 27, 1995 and increases by the sum of $256.00 each week.\n8. The plaintiff has experienced continuous physical pain and mental suffering since the accident.\n10. Since the trial of this case was concluded, the plaintiff has been evaluated by [a psychologist] who has determined the plaintiff is \u201ctotally disabled from employment at any exertional level in the national economy and that such employment in the future is not foreseen . . . .\u201d\n11. [Plaintiffs] physical and mental condition prevent him from returning to gainful employment. It is anticipated he will continue to receive workers\u2019 compensation indemnity benefits for the rest of his life.\n12. [Plaintiff] was 47 years of age at the time of trial and his life expectancy is 27.38 years. Workers[\u2019] compensation benefits to be paid in the future at the rate of $256.00 per week total $364,482.56. [A forensic economist] has determined the present value of the future payments is $178,908.63 using a 6% discount rate.\n13. The total present value of the workers\u2019 compensation lien is $300,506.46 which includes the total amount of all payments made for medical expenses and indemnity through January 20, 1995 and the present value of all future indemnity payments.\n14. The award of $219,052.20 is exceeded by the total lien of $300,506.46 and is insufficient to compensate the subrogation claim of Zurich-American.\nUpon these findings, the trial court concluded that it had authority, pursuant to the provisions of N.C.G.S. \u00a7 97-10.2(j), to determine the amount of the workers\u2019 compensation lien of Siemens and its insurance carrier, Zurich; that it was fair and equitable to reduce the workers\u2019 compensation lien to the total sum of $25,000.00 to be paid to Zurich, with the remaining sum of $252,995.60 from the judgment against the defendant (the third-party tort-feasor) to be made available for payment of court costs, attorney fees and damages to the plaintiff; and the court so ordered. Siemens and Zurich, as unnamed parties in this action, filed notice of appeal to the Court of Appeals, which upheld the jurisdictional determination and premise of the trial court, but vacated and remanded \u201cfor further hearing and specific findings of fact.\u201d Johnson v. Southern Indus. Constructors, 126 N.C. App. 103, 116, 484 S.E.2d 574, 581 (1997). The petition of these parties for discretionary review was allowed by this Court on 23 July 1997.\nThe plaintiff contends that the provisions of N.C.G.S. \u00a7 97-10.2Q) give the trial court the jurisdiction and authority to set the amount of the subrogation lien in this case. Section 97-10.2Q) provides in pertinent 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 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 . . . , the judge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien.\nN.C.G.S. \u00a7 97-10.2Q) (1991).\nAs this Court has stated, it is clear that the two events under this statute \u201cwhich will trigger the authority of a judge to exercise discretion in determining or allocating the amount of lien or disbursement are (1) a judgment insufficient to compensate the subrogation claim of the workers\u2019 compensation insurance carrier or (2) a settlement.\u201d Hieb v. Lowery, 344 N.C. 403, 409, 474 S.E.2d 323, 326 (1996). Plaintiff argues that the trial court\u2019s jurisdiction and discretion to set the amount of the subrogation lien were triggered in this case because plaintiffs assumed future benefits should be included with the compensation benefits he has already been paid when ascertaining the amount of the subrogation lien, and thereby, with this composite, the judgment obtained from the third party would be insufficient to satisfy the lien. We decline to accept this proposition.\nIndeed, this Court has already considered and decided this issue contrary to this premise in Hieb. Hieb was a case substantially similar to the circumstances in the case sub judice, involving the amount or sufficiency of the third-party judgment to satisfy the subrogation claim. In Hieb, it was argued that the plaintiff was \u201cpermanently and totally disabled and therefore receiving lifetime benefits,\u201d id. at 409, 474 S.E.2d at 327, and considering the compensation benefits then paid, \u201cplaintiffs contend it is substantially certain that the workers\u2019 compensation lien will exceed the amount of available funds in the future,\u201d id. This Court specifically held in Hieb that plaintiff\u2019s \u201cjudgment is greater than the amount of St. Paul\u2019s lien at the time of Judge Sitton\u2019s order and therefore is not \u2018insufficient to compensate the subrogation claim.\u2019 \u201d Id. at 410, 474 S.E.2d at 327. Likewise, in the case sub judice, since the judgment obtained from defendant is sufficient to compensate the subrogation claim of Siemens and Zurich at the time of the trial court\u2019s order, the trial court was without jurisdiction to determine the subrogation amohnt pursuant to N.C.G.S. \u00a7 97-10.20).\nPlaintiff further contends that subjection (j) of this statute must be read in pari materia with N.C.G.S. \u00a7 97-10.2(f)(l)(c). Pollard v. Smith, 324 N.C. 424, 426, 378 S.E.2d 771, 773 (1989). Subsection (f)(1)(c) provides that the employer shall be reimbursed by order of the Commission from the proceeds of the recovery from the third party for \u201call benefits by way of compensation or medical compensation expense paid or to be paid by the employer under award of the Industrial Commission.\u201d N.C.G.S. \u00a7 97-10.2(f)(l)(c). Therefore, plaintiff argues that the trial court should consider and determine the future benefits \u201cto be paid\u201d in determining pursuant to subsection (j) whether a judgment obtained is insufficient. We also decline to adopt this proposed construction of N.C.G.S. \u00a7 97-10.2.\nIt is clear from our decisions that subsection (j) is to be viewed in light of this entire statute, Pollard v. Smith, 324 N.C. at 426, 378 S.E.2d at 772, which sets forth the overall procedure for determining the respective rights to compensation and subrogation between the employee, the employer and any third-party tort-feasor, and that this is entirely the province of the Commission except in the limited circumstance set forth in subsection (j). We note specifically that subsection (e) provides at length for the appropriate disbursement of the funds available, by way of reduction of damages, subrogation and contribution, all in avoidance of unjust, excessive or double recovery; and subsection (f) provides a specific order of priority for disbursement of the third-party judgment proceeds by the Commission where the employer has admitted liability for benefits \u201cor if an award final in nature\u201d has been entered by the Commission. This includes the reimbursement to the employer in subparagraph (f)(1)(c) for all benefits \u201cpaid or to be paid\u201d under the award of the Commission. We further note in this regard that in the case sub judice, the plaintiff, pursuant to Commission approval, has been receiving temporary total disability benefits, whereas in Hieb, the plaintiff was permanently and totally disabled and was receiving lifetime benefits. The Commission, as intended by the legislature, is far better equipped, by its established procedures, practice and expertise, to make the determinations and dispensations contemplated by subsections (e) and (f), with respect to the variables of future workers\u2019 compensation benefits, than is the already amply burdened superior court system.\nThe construction advocated by plaintiff would necessarily expand the scope and applicability of subsection (j) and at the same time severely restrict the scope and applicability of subsection (f). It is entirely conceivable that under plaintiff\u2019s interpretation of subsection (j), virtually any award by the Commission extending into the future could be so projected as to render any judgment against a third party insufficient to compensate the subrogation claim. Subsection (j) provides in pertinent part, \u201cin the event that a judgment is obtained which is insufficient to compensate the subrogation claim\u201d (emphasis added), and this wording clearly indicates that the comparison between the compensation benefits paid and the judgment is to be made at the precise time the \u201cjudgment is obtained.\u201d Plaintiff\u2019s proposed construction would require that this language of the statute be amended to read \u201cin the event that a judgment is obtained which is or may in time become insufficient...,\u201d and this would constitute an impermissible rewriting of this statute by this Court.\nWith respect to interpreting the Workers\u2019 Compensation Act, this Court has warned against any inclination toward judicial legislation, and in the words of Justice Ervin, speaking for this Court, \u201c \u2018[j]udges must interpret and apply statutes as they are written.\u2019 \u201d Andrews v. Nu-Woods, Inc., 299 N.C. 723, 726, 264 S.E.2d 99, 101 (1980) (quoting Montague Bros. v. W.C. Shepherd Co., 231 N.C. 551, 556, 58 S.E.2d 118, 122 (1950)). This Court has long distinguished between liberal construction of statutes and impermissible judicial legislation or the act of a court in \u201c \u2018ingrafting upon a law something that has been omitted, which [it] believes ought to have been embraced.\u2019 \u201d Deese v. Southeastern Lawn & Tree Expert Co., 306 N.C. 275, 278, 293 S.E.2d 140, 143 (1982) (quoting Rice v. Denny Roll & Panel Co., 199 N.C. 154, 157, 154 S.E. 69, 70 (1930)).\nIn its acquiescence in the plaintiff\u2019s proposed interpretation of subsection Q), in conjunction with subsection (f)(1)(c) of this statute, the Court of Appeals notes the following comments from Professor Larson:\nA complication that, in the nature of things, cannot be avoided is the fact that at the time of distribution of the third-party recovery the extent of the carrier\u2019s liability for future benefits often is unknown. Indeed, this would happen in almost every serious case in which the compensation payments are periodic and the third-party recovery is reasonably prompt.\nA well-drawn statute will anticipate this problem and spell out the steps to meet it.\n2A Arthur Larson & Lex K. Larson, The Law of Workmen\u2019s Compensation \u00a7 74.31(e), at 514-15 (1996). The Court of Appeals, while correctly noting this complication with respect to consideration of benefits \u201cto be paid\u201d, as provided in subsection (f)(1)(c) for disbursement by order of the Industrial Commission, undertakes to apply this to subsection (j) and thus allow our superior courts to expand their jurisdiction by undertaking, as the trial court did in this case, the type of extensive evidentiary hearing heretofore reserved exclusively for the expertise of the Commission. For the reasons stated herein, we do not perceive this to be the intent of the legislature by its enactment of N.C.G.S. \u00a7 97-10.2Q).\nThe concept and provisions of the Workers\u2019 Compensation Act as a whole, and specifically the language of N.C.G.S. \u00a7 97-91, make it clear, as this Court has held, that the legislature intended for the Industrial Commission to have broad and exclusive jurisdiction, except in narrow, specific instances, to determine the amounts of compensation \u201cto be paid\u201d to injured workers and the appropriate disposition and remedies with respect to all parties involved, including frequently third parties. See Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495 (1970); Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589 (1963). Exceptions to the Commission\u2019s jurisdiction, such as that found in N.C.G.S. \u00a7 97-10.2Q), should be construed so as to accomplish and be consistent with the overall purposes of the Act, which includes limiting employers\u2019 financial liability and preventing double recoveries to employees. Radzisz v. Harley Davidson of Metrolina, Inc., 346 N.C. 84, 484 S.E.2d 566 (1997). In Radzisz, this Court recently stated:\nThe purpose of the North Carolina Workers\u2019 Compensation Act is not only to provide a swift and certain remedy to an injured worker, but also to ensure a limited and determinate liability for employers. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 427, 146 S.E.2d 479, 484 (1966). Section 97-10.2 and its statutory predecessors were designed to secure prompt, reasonable compensation for an employee and simultaneously to permit an employer who has settled with the employee to recover such amount from a third-party tort-feasor. Brown v. Southern Ry. Co., 204 N.C. 668, 671, 169 S.E. 419, 420 (1933). Absent extenuating circumstances not present here, the Act in general and N.C.G.S. \u00a7 97-10.2 specifically were never intended to provide the employee with a windfall of a recovery from both the employer and the third-party tort-feasor. Where \u201c[t]here is one injury, [there is] still only one recovery.\u201d Andrews v. Peters, 55 N.C. App. 124, 131, 284 S.E.2d 748, 752 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E.2d 364 (1982).\nRadzisz, 346 N.C. at 89, 484 S.E.2d at 569.\nIt is clear from the provisions of N.C.G.S. \u00a7 97-10.2, including specifically subsection (j) thereof, and the cases which have construed it, that it was and is the intent of the legislature that non-negligent employers are to be reimbursed for those amounts they pay to employees who are injured by the negligence of third parties, and -that employees are not intended to receive double recoveries. The rulings of the trial court and the Court of the Appeals in the case sub judice would effect the opposite. We therefore hold that since the judgment for plaintiff against the third-party tort-feasor in this case, in the amount of $219,052.20, is greater than the amount of the lien at the time o/the trial, court\u2019s order and is thus not \u201cinsufficient to compensate the subrogation claim,\u201d the trial court did not have jurisdiction to determine the amount of the lien pursuant to N.C.G.S. \u00a7 97-10.2Q).\nFor the reasons stated herein, we reverse the decision of the Court of Appeals.\nREVERSED.", "type": "majority", "author": "LAKE, Justice." }, { "text": "Justice Frye\ndissenting.\nSimply stated, the issue in this case is whether \u201cthe subrogation claim of the Workers\u2019 Compensation Insurance Carrier\u201d includes benefits \u201cto be paid by the employer under award of the Industrial Commission\u201d for purposes of determining, pursuant to N.C.G.S. \u00a7 97-10.2(j), whether the judgment obtained by the employee against a third-party tort-feasor is \u201cinsufficient\u201d to compensate that claim. As I read the majority opinion, which reverses the superior court and the Court of Appeals, it holds that the subrogation claim includes only benefits already paid at the time of the judgment obtained by the employee against the tort-feasor and does not include any amounts \u201cto be paid\u201d by the employer under an award by the Industrial Commission.\nUnder N.C.G.S. \u00a7 97-10.2(j), if an employee obtains a judgment against a third-party tort-feasor \u201cwhich is insufficient to compensate the subrogation claim\u201d of the workers\u2019 compensation carrier, the presiding superior court judge, upon application of either party, may determine the amount, if any, of the employer\u2019s lien. What this means is that, notwithstanding the fact that the subrogation claim exceeds the amount of the judgment, the superior court may, in its discretion, set the lien at an amount that is less than the subrogation claim.\nIn the instant case, the presiding superior court judge determined, pursuant to his authority under N.C.G.S. \u00a7 97-10.2(j), that the judgment obtained by plaintiff was insufficient to compensate the subrogation claim and, in his discretion, reduced the subrogation amount, that is, \u201cdetermine [d] . . . the amount... of the employer\u2019s lien.\u201d N.C.G.S. \u00a7 97-10.2Q) (1991). This comports with the purpose of subsection (j) which is to allow the injured employee to receive a portion of the recovery obtained in his lawsuit against the negligent third party. The Court of Appeals agreed that the superior court proceeded correctly under N.C.G.S. \u00a7 97-10.2(j), but remanded the case for further hearing and specific findings of fact. The majority now reverses the Court of Appeals, holding \u201cthat the trial court may not by this means assert its jurisdiction over the jurisdiction of the Industrial Commission.\u201d\nThe majority relies on Hieb v. Lowery, 344 N.C. 403, 474 S.E.2d 323 (1996), to support the conclusion that plaintiff\u2019s future benefits may not be included when ascertaining the amount of the workers\u2019 compensation carrier\u2019s claim for purposes of triggering N.C.G.S. \u00a7 97-10.2(j). Although I dissented in Hieb, I am bound by the decision of the Court in that case. However, I do not believe Hieb is controlling in the instant case. The relevant issue in Hieb was whether the word \u201cjudgment\u201d in N.C.G.S. \u00a7 97-10.2(j) referred to the amount awarded by the trial court or to the proceeds actually available to satisfy the judgment. This Court settled the question by according judgment its \u201cplain meaning,\u201d holding that the jury verdict of over $1.2 million, as modified, constituted the judgment rather than the $475,000 in insurance proceeds that were actually available to satisfy the judgment.\nIn this case there is no dispute as to the amount of the judgment. Rather, we are called upon to determine what constitutes the workers\u2019 compensation carrier\u2019s \u201csubrogation claim.\u201d The Workers\u2019 Compensation Act, chapter 97 of the North Carolina General Statutes, does not define the term \u201csubrogation claim.\u201d However, where the employer has filed a written admission of liability for benefits or a final award has been entered by the Industrial Commission, the insurance carrier\u2019s right to subrogation, authorized by N.C.G.S. \u00a7 97-10.2(g), is determined by the employer\u2019s right, under N.C.G.S. \u00a7 97-10.2(f)(l)(c), to reimbursement \u201cfor all benefits ... paid or to be paid by the employer under award of the Industrial Commission.\u201d N.C.G.S. \u00a7 -97-10.2(f)(l)(c) (emphasis added). Therefore, to the extent that the workers\u2019 compensation insurance carrier will pay benefits in the future, the carrier will have a \u201csubrogation claim\u201d for those payments against any amount obtained by settlement, judgment, or otherwise from a third-party tort-feasor. This claim entitles the insurance carrier to pursue its right to a lien \u201c[i]n any proceeding against or settlement with the third party.\u201d N.C.G.S. \u00a7 97-10.2(h).\nThe carrier\u2019s right to subrogation does not cease to accrue at the precise moment that the judgment is obtained. Rather, it continues as to all benefits to be paid in the future by the employer under award of the Industrial Commission. It is therefore inequitable to deny the existence of that component of the subrogation claim when comparing it with the judgment for purposes of determining the judgment\u2019s sufficiency under N.C.G.S. \u00a7 97-10.2(j). Because I conclude that the meaning of \u201csubrogation claim\u201d under N.C.G.S. \u00a7 97-10.2Q) includes amounts \u201cto be paid\u201d by the workers\u2019 compensation carrier as well as those which have already been paid at the time the judgment is obtained, I must agree with the Court of Appeals that the trial court properly considered benefits \u201cto be paid\u201d in determining the insufficiency of the third-party judgment to compensate the subrogation claim. For this reason, I cannot join the majority opinion.\nJustice Webb joins in this dissenting opinion.", "type": "dissent", "author": "Justice Frye" } ], "attorneys": [ "Taft, Taft & Haigler, P.A., by Thomas F. Taft and R. Alfred Patrick, for plaintiff-appellee.", "Teague, Campbell, Dennis & Gorham, L.L.P., by George W. Dennis III and John R. Green, Jr., for unnamed party-appellants Siemens Energy & Automation, Inc., and Zurich-American Insurance Company." ], "corrections": "", "head_matter": "CHARLES LYNWOOD JOHNSON v. SOUTHERN INDUSTRIAL CONSTRUCTORS, INC.\nNo. 282PA97\n(Filed 6 February 1998)\nWorkers Compensation \u00a7 85 (NCI4th)\u2014 subrogation lien\u2014 determination by court \u2014 future benefits \u2014 not included\nThe trial court was without jurisdiction to determine the subrogation amount of a workers\u2019 compensation lien pursuant to N.C.G.S. \u00a7 97-10.2Q) where plaintiff was a worker injured by a falling crane; he began receiving workers\u2019 compensation and filed a tort suit against defendant, a third party, alleging that his injuries had been caused by the negligence of one of defendant\u2019s employees; plaintiff received a verdict and judgment of $219,052 plus interest and costs; plaintiff\u2019s employer and workers\u2019 compensation insurance carrier filed a subrogation lien; the trial court found that the total of all workers\u2019 compensation benefits paid plus the present value of future payments was $300,506.46, so that the tort award was insufficient for the subrogation lien and the court would therefore have authority to determine the amount of the lien; and the court then concluded that it was fair and equitable to reduce the lien to $25,000. The issue of assumed future benefits was considered and decided contrary to plaintiff in Hieb v. Lowery, 344 N.C: 403. Furthermore, although subsection (f)(1)(c) of the statute refers to benefits \u201cto be paid,\u201d it is clear from the provisions of N.C.G.S. \u00a7 97-10.2 and the cases which have construed it that it was and is the intent of the legislature that non-negligent employers are to be reimbursed for those amounts they pay to employees who are injured by the negligence of third parties, and that employees are not intended to receive double recoveries. Since the tort judgment obtained from defendant was sufficient to compensate the workers\u2019 compensation subrogation claim at the time of the trial court\u2019s order, the court lacked jurisdiction to determine the subrogation amount.\nJustice Frye dissenting.\nJustice Webb joins in this dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 126 N.C. App. 103, 484 S.E.2d 574 (1997), vacating and remanding an order entered on 3 March 1995 by Sumner, J., in Superior Court, Nash County. Heard in the Supreme Court 19 November 1997.\nTaft, Taft & Haigler, P.A., by Thomas F. Taft and R. Alfred Patrick, for plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by George W. Dennis III and John R. Green, Jr., for unnamed party-appellants Siemens Energy & Automation, Inc., and Zurich-American Insurance Company." }, "file_name": "0530-01", "first_page_order": 570, "last_page_order": 580 }