Martinez v. Lovette

EAGLES, Judge. We first note that plaintiff argues this appeal should be dismissed because defendant did not order the transcript of the evidence within the time allowed by Rule 7 of the North Carolina Rules of Appellate Procedure. Plaintiff first made this motion in superior court; the superior court denied plaintiffs motion. The denial is not the subject of an assignment of error here. Accordingly, this issue is not before us. I. Defendant argues that the superior court exceeded its authority under G.S. 97-10.2 when it ordered disbursement of the funds paid by Integon. G.S. 97-10.2(g) provides that the workers’ compensation carrier is subrogated to all rights and liabilities of the employer. G.S. 97-10.2(f)(l) provides in pertinent part: If the employer has filed a written admission of liability for benefits under [the Workers’ Compensation Act] 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: c. Third to the reimbursement of the employer for all benefits by way of compensation or medical compensation expense paid or to be paid by the employer under award of the Industrial Commission. We have previously interpreted these two provisions of G.S. 97-10.2 to provide that the workers’ compensation insurance carrier who has paid money on behalf of the injured employee has a lien on “any payment, including uninsured/underinsured motorist insurance pro [715] ceeds, made to the employee by or on behalf of a third party as a result of the employee’s injury.” Ohio Casualty Group v. Owens, 99 N.C. App. 131, 134, 392 S.E.2d 647, 649, disc. review denied, 327 N.C. 484, 396 S.E.2d 614 (1990). See Buckner v. City of Asheville, 113 N.C. App. 354, 360-61, 438 S.E.2d 467, 470, disc. review denied, 336 N.C. 602, 447 S.E.2d 385 (1994) (where we said “[t]his Court recently held that an employer who has paid workers’ compensation benefits to its employee is entitled to a lien on the employee’s underinsured [and uninsured] motorist benefits received by the employee in an action by the employee against the tortfeasor”). See also Bailey v. Nationwide Mutual Ins. Co., 112 N.C. App. 47, 54, 434 S.E.2d 625, 630 (1993) (where we held that a workers’ compensation carrier has a subrogation lien on uninsured motorist policy proceeds). G.S. 97-10.2(j) provides that the superior court may determine the amount, if any, of the employer’s lien (and accordingly the workers’ compensation insurance carrier’s lien) only when “a judgment is obtained which is insufficient to compensate the subrogation claim of the Workers’ Compensation Insurance Carrier, or . . . [when] a settlement has been agreed upon by the employee and the third party.” Here, the superior court rendered judgment against the tortfeasors for $300,000 (and Integon paid into court $50,000) which was more than sufficient to compensate defendant for the $26,297.64 it had paid on behalf of plaintiff. Furthermore, plaintiff and the tortfeasors had not entered into any settlement agreement. Plaintiff argues that “third party” in G.S. 97-10.2(j) includes Integon and that Integon and plaintiff entered into a settlement when Integon agreed to pay the $50,000 into court. We disagree. In Buckner, 113 N.C. App. at 359, 438 S.E.2d at 470, we interpreted “third party” to mean the tortfeasor, and the applicable language of G.S. 97-10.2Q) has not been amended since Buckner was decided. On this record, we hold that the superior court did not have authority to distribute the uninsured motorist policy proceeds. In this case, the Industrial Commission, acting pursuant to G.S. 97-10.2(f)(l), was the only agency authorized to determine whether and what portion, if any, defendant was entitled to receive of the $50,000 uninsured motorist coverage as reimbursement for money defendant paid on behalf of plaintiff pursuant to the workers’ compensation insurance coverage. Reversed. Chief Judge ARNOLD and Judge MARTIN, John C., concur.