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Tomlinson v. Continental Casualty Company9/2/2003
Mandate Issued: 10/02/2003
__ P.3d __
REVERSED AND REMANDED
Intervenor/Appellant Transcontinental Insurance Company (Transcontinental) appeals from the trial court's order which denied Transcontinental's Motion for Summary Judgment and granted the Cross-Motion for Summary Judgment filed by Plaintiff/Appellee Jeffrey M. Tomlinson. The summary judgment denied Transcontinental's quest to be reimbursed for workers' compensation benefits paid to Tomlinson after Tomlinson received an amount greater than the workers' compensation benefits in a settlement with a third-party tortfeasor. Because we find that Transcontinental had a statutory right to subrogation of workers' compensation benefits paid to Tomlinson, we reverse and remand.
The facts of this case are not in dispute. Tomlinson was badly injured in the course and scope of his employment with Westco, Inc. March 8, 1999. The injury was due to the negligence of a third party, Defendant Ascot Cartage Company (Ascot). Transcontinental was the workers' compensation insurer for Westco at the time of the injury. Tomlinson made a claim for workers' compensation benefits and following a joint petition settlement, Transcontinental paid Tomlinson $170,566.94 in workers' compensation benefits March 19, 2001.
In the meantime, Tomlinson filed a third-party claim against Ascot and received a settlement of $481,695.88 from Ascot February 21, 2001. Transcontinental filed its Unopposed Application to Intervene in this action between Tomlinson and Ascot, seeking to recover its statutory workers' compensation subrogation from the third-party settlement. Transcontinental asserted that it was entitled to $109,926.48 pursuant to 85 O.S.2001 §44 and Prettyman v. Halliburton, 1992 OK 63, 841 P.2d 573. Transcontinental indicated in its Application to Intervene that Tomlinson disagreed with the subrogation amount because he was not made whole by the third-party settlement. Transcontinental argued that the "make whole" rule does not apply to statutory subrogation, but applies only to contractual subrogation, citing Equity Fire and Casualty Company v. Youngblood, 1996 OK 123, 927 P.2d 572. Transcontinental indicated that Tomlinson and Transcontinental had agreed to hold $109,926.48 in escrow pending the outcome of the intervention proceeding.
Transcontinental and Tomlinson filed a Joint Statement of Facts June 14, 2001. The statement detailed how Tomlinson was injured and the extent of his injuries. The statement also indicated that two other people were injured in the accident, that Ascot was insured for $1,000,000, and that after mediation it was decided that Tomlinson's injuries were the most severe and he received 48% of Ascot's policy amount. The statement concluded with a declaration that the issue for the trial court was whether and to what extent Transcontinental may claim a subrogation interest in the third-party settlement paid to Tomlinson. Transcontinental and Tomlinson filed a Supplemental Joint Statement of Facts June 25, 2001. The supplemental statement noted that Tomlinson's counsel received a 35% contingent fee from the third-party settlement amount, and that Tomlinson reimbursed his counsel for $2,660.33 in costs, so that Tomlinson received a net award of $310,442, from which Transcontinental sought to recover $109,926.48 in subrogation.
Transcontinental filed its Motion for Summary Judgment July 26, 2001. Tomlinson filed his Opposition to Summary Judgment and Cross-Motion for Summary Judgment August 8, 2001. The parties did not dispute the facts. The dispute remained whether the so-called "make whole" rule applies to the §44 subrogation right. The trial court granted summary
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