Nivens v. Firestone Tire & Rubber Co.

PARKER, Judge. By express language of the statute G.S. 97-10.2, compensation and other benefits under the North Carolina Workmen’s Compensation Act for disability, disfigurement, or death are not affected by the fact that the injury or death was caused under circumstances creating a liability in some person other than the employer to pay damages therefor. In such case, the respective rights and interests of the employee-beneficiary under the Act, the employer, and the employer’s insurance carrier, if any, in respect of the cause of action against the third party tort-feasor and the damages recovered shall be as set forth in that section of the statute. Subsection (f) (1) of G.S. 97-10.2 is as follows: “ (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: “a. First to the payment of actual court costs taxed by judgment. “b. Second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and such fee shall not be subject to the provisions of § 90 of this Chapter [G.S. 97-90] but shall not exceed one third of the amount obtained or recovered of the third party. “c. 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. [477] “d. Fourth to the payment of any amount remaining to the employee or his personal representative.” In this case, the record reveals that the employer has filed a written admission of liability for benefits under the Workmen’s Compensation Act and those benefits have been and are being paid to the plaintiff. In addition, plaintiff has received from the tort-feasor a cash payment of $2,500.00 and a remainder interest in real property which, on competent evidence, the Deputy Commissioner has found to have a reasonable fair market value of $3,000.00 The Full Commission has adopted that finding as its own, and on this appeal no question has been raised as to the valuation so established. The question presented by this appeal is whether the cash payment and the value of the remainder interest conveyed to plaintiff constitute amounts obtained by her “by settlement with, judgment against, or otherwise” from the third party tort-feasor by reason of her husband’s death so as to subject such amounts to the disbursement authority of the Industrial Commission under G.S. 97-10.2 (f). We hold that they do. It is, of course, true that plaintiff was not a party to the criminal action in which the tort-feasor, Rimmer, was charged with the murder of her husband, and she cannot be bound by the recitations in the judgment entered in that case to the effect that the real property was deeded to her “as payment on damages” and that the sum of $2,500.00 was to be paid in addition thereto “as full compensation.” It is also true that, apart from any implications arising from such recitations in the judgment entered in the criminal case, there was here no finding or evidence that by accepting the deed and the cash payment plaintiff intended to make a final and binding settlement with the tort-feasor, although, except for the restriction imposed by Subsection (h) of G.S. 97-10.2, it would have been legally possible for her to have done so by negotiations undertaken during the course of the criminal proceeding. See Jenkins v. Fields, 240 N.C. 776, 83 S.E. 2d 908 (1954) ; Hamrick v. Beam, 19 N.C. App. 729, 200 S.E. 2d 337 (1973). G.S. 97-10.2 (h) does contain the restriction that “[n] either 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 [478] therein”; (subject to a proviso not here applicable). Nevertheless, if plaintiff had brought a civil action against Rimmer for the wrongful death of her husband, Rimmer would have been entitled to credit for the payment previously made by him and for the value of the property he had previously conveyed to her. Hester v. Motor Lines, 219 N.C. 743, 14 S.E. 2d 794 (1941). To the extent of such credit, at least, plaintiff’s acceptance of the deed and payment have effectuated a “settlement” of Rim-mer’s civil liability for the wrongful death of her husband. In our opinion, and we so hold, the amount of such credit does constitute an amount obtained by plaintiff “by settlement with . . . or otherwise from the third party” by reason of such wrongful death so as to bring such amount within the purview of G.S. 97-10.2 (f) (1). We also hold that the award of the Industrial Commission correctly applied that section under the circumstances of this case. Affirmed. Judge Martin concurs. Chief Judge Brock dissents.